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affirmatively showed that Hessler had met the legal standard 

of competency.40

[16] As to his claims of errors or misconduct at trial and 

ineffective assistance of counsel, such claims were inappropriate for coram nobis relief. The writ of error coram nobis is 

not available to correct errors of law.41 We find no error in the 

district court’s denial of a writ of error coram nobis.

VI. CONCLUSION

Except for Hessler’s argument citing to Martinez, the claims 

raised in Hessler’s second motion for postconviction relief 

either were litigated in the prior proceedings or were known 

and could have been litigated. As such, they were procedurally barred. And Hessler’s claim of ineffective assistance 

of postconviction counsel, relying upon Martinez, was without constitutional support. He similarly failed to raise any 

basis warranting coram nobis relief. We affirm the denial of 

Hessler’s second motion for postconviction relief and writ of 

error coram nobis.

Affirmed

Heavican, C.J., not participatin

40 See Hessler, supra note 4.

41 Diaz, supra note 35.

Mark Stauffer and Cindi Stauffer, husband a

appellees, v. Betty Jean Benson, appe

___ N.W.2d ___

Filed July 25, 2014. No. S-13-928.

1. Breach of Contract: Damages. A suit for damages arising from breach of a 

contract presents an action at law.

2. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole 

judge of the witnesses’ credibility and the weight to be given their testimony.

3. Judgments: Appeal and Error. The trial court’s factual findings in a bench 

trial of an action at law have the effect of a jury verdict and will not be set aside 

unless clearly erroneous.

4. Appeal and Error. An appellate court independently reviews questions of law 

decided by a lower court.
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5. Contracts: Waiver. A party to a contract may waive the provisions made for his 

or her benefit.

6. Breach of Contract. In order to constitute a repudiation, a party’s language must 

be sufficiently positive to be reasonably interpreted to mean that the party will 

not or cannot perform.

7. ____. The question whether there has been repudiation or whether repudiation 

was justified is a question of fact.

8. Contracts: Tender: Time: Waiver. An unqualified renunciation of an executory 

contract before time for performance by one party excuses tender of performance 

by the other party at the time set for performance.

9. Breach of Contract. A covenant by a purchaser to pay, and by the vendor to convey a good title, both to be performed at the same time, are mutually dependent, 

and neither party can claim a breach without a tender of performance and offer 

to perform upon due performance by the other, or, at least, proof of readiness and 

willingness to perform.

Appeal from the District Court for Phelps County: Steph

R. Illingworth, Judge. Affir

Stephen G. Lowe for appellant.

Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen, 

Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellees.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Miller-Lerman,

NATURE OF CASE

In this breach of contract action, Mark Stauffer and Cindi 

Stauffer, husband and wife, the appellees, entered into an 

agreement (Purchase Agreement) with Betty Jean Benson 

under which the appellees were to purchase Benson’s undivided one-third interest in certain real estate for $150,000. 

The contract was not performed, and the appellees filed an 

action against Benson in the district court for Phelps County. 

At the time of the bench trial, Benson no longer had title 

to the property. In an order filed August 2, 2013, the court 

determined that Benson had breached the Purchase Agreement 

by refusing to sell her interest in the property to the appellees. The district court found in favor of the appellees and 
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against Benson and awarded damages to the appellees. Benson 

appeals. We affirm.

STATEMENT OF FACTS

This case involves a parcel of real estate, a farm, located 

in Phelps County, Nebraska. Initially, Vern Johnson and Josie 

Johnson, husband and wife, owned the 160-acre parcel of real 

estate. Vern passed away in 1970, and after Vern’s death, the 

property passed equally to the couple’s three children, Gary 

Johnson, Nancy Ashcraft, and Benson, subject to a life estate in 

favor of Josie. Josie passed away in September 2010.

Cindi is the daughter of Gary. In 1987, the appellees moved 

onto the property and began a farming operation. At trial, the 

parties testified that there were numerous discussions regarding the execution of the “family plan” to sell the farm to the 

appellees in order to keep it in the family. These discussions 

occurred between the appellees and Benson prior to and after 

the execution of the Purchase Agreement which is at the center 

of this case.

Due to issues within the family, the farm became the subject of a partition sale, and ultimately, the property was sold 

at a partition sale. The appellees were named as parties in the 

partition action. Before the partition sale occurred, the appellees had entered into negotiations with Benson, Ashcraft, and 

Gary to purchase their interests in the property. The Purchase 

Agreement between the appellees and Benson was signed after 

the partition action had been filed but before sale.

With respect to the negotiations between the appellees and 

Benson, on January 18, 2011, an attorney, acting on behalf 

of and at the direction of Cindi, sent a draft purchase agreement to the appellees and to Benson. Under the Purchase 

Agreement, the appellees were to pay a deposit of $200 and 

to purchase Benson’s undivided one-third interest in the farm 

for a total of $150,000. With respect to the $200, the Purchase 

Agreement stated: “$200 deposited herewith as evidenced by 

[Benson’s] receipt attached below. Balance to be paid as shown 

in Paragraph(s) 1 following, which paragraph(s) numbered 

1&2 inclusive as being applicable to this agreement.” The 
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balance of $149,800 was specifically discussed in Paragraph 1. 

Paragraph 1 of the Purchase Agreement provided:

1. Conditional Upon Loan:

Balance of $149,800 to be paid in cash or by certified check at time of delivery of deed, conditional however, upon [the appellees’] ability to obtain a loan to be 

secured by deed of trust or mortgage on above described 

property [the farm], in the amount of $148,000. Said loan 

to be FSA (Farm Service Agency) with terms providing 

for interest not exceeding 5% per annum, and annual 

payments of approximately $N/A plus taxes and insurance. [The appellees] agree to make application for said 

loan within 30 days from the date of acceptance or this 

offer shall be null and void and the earnest money shall 

be forfeited.

The Purchase Agreement originally set the closing date for 

May 1, 2011.

On January 24, 2011, Benson appeared at the office of the 

appellees’ attorney and signed the Purchase Agreement. The 

attorney did not discuss the terms and conditions of the draft 

purchase agreement with Benson. On January 25, the appellees’ attorney sent a letter to them informing them that Benson 

had signed the Purchase Agreement. The appellees signed the 

Purchase Agreement approximately 1 week later.

After signing the Purchase Agreement, the appellees sought 

funding through the Farm Service Agency (FSA), which they 

ultimately did not obtain. However, the appellees’ friends, 

Karen Kirby and Scott Kirby, agreed to loan $150,000 to the 

appellees, and they executed a promissory note on February 8, 

2011. Per the promissory note, the appellees were to repay the 

note in full by February 8, 2012.

During this time, the appellees were also attempting to 

negotiate a price for Ashcraft’s undivided one-third interest in 

the property. The appellees already had assurances from Gary, 

Cindi’s father, to purchase his undivided one-third interest. 

Benson was aware of the appellees’ negotiations with Ashcraft, 

and on April 28, 2011, Benson agreed to extend the closing 

date of the Purchase Agreement for her undivided one-third 

interest from May 1, 2011, to March 1, 2012.
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The negotiations with Ashcraft were complicated due to 

matters involving Josie’s estate in which questions had been 

raised regarding Ashcraft’s handling of the estate. On June 

14, 2011, Ashcraft’s attorney sent a letter to the appellees’ 

counsel and Benson’s counsel offering to sell Ashcraft’s onethird interest to the appellees for $185,000, conditioned on 

Ashcraft’s being released from any liability on issues regarding 

Josie’s estate.

On July 7, 2011, the appellees’ attorney sent a letter to 

Ashcraft’s attorney indicating that the appellees would purchase Ashcraft’s interest for $185,000. The letter also stated 

that “[e]veryone is having a difficult time getting . . . Benson 

to sign the estate settlement agreement.”

On July 18, 2011, Ashcraft’s attorney sent a letter to the 

appellees’ attorney recognizing that Benson was not going to 

be agreeable to signing the estate settlement agreement. He 

stated that he had spoken with Ashcraft and that it was their 

“plan to move forward with the partition action pending in 

Phelps County District Court unless all parties are willing to 

settle all matters in a manner consistent with the proposed 

agreements that accompanied my letter to you and [Benson’s 

counsel] on June 14, 2011.”

On August 3, 2011, Ashcraft’s attorney sent a fax to the 

appellees’ attorney. The fax offered to sell Ashcraft’s undivided 

one-third interest in the property to the appellees with a release 

of liability on the estate issues.

Around that time, Benson decided that she was no longer 

willing to sell her undivided one-third interest in the property to the appellees. On August 9, 2011, the appellees’ 

attorney sent a letter to Cindi stating that he had spoken to 

Benson’s attorney and that Benson’s attorney “indicated that 

[Benson] is not agreeable to the sale of $150,000.” At the 

time of trial, Benson testified that her reasons for backing 

out of the Purchase Agreement were as follows: the failure of 

the appellees to obtain financing as outlined in the Purchase 

Agreement, the failure of everyone to agree on issues related 

to Josie’s estate, the fact that Ashcraft was receiving $185,000 

for her interest and was not cooperating on other issues relating to Josie’s estate, and her position that she would sell her 
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interest for $150,000 if Ashcraft and Gary would also take that 

price for their interests.

The appellees filed their complaint on November 22, 2011. 

The appellees alleged two causes of action. In the first cause 

of action, the appellees sought specific performance of the 

Purchase Agreement for the conveyance of Benson’s undivided 

one-third interest in the property. In the second cause of action, 

the appellees sought an injunction to enjoin the referee’s sale 

of the property in the partition action.

The appellees were not granted a stay of the referee’s sale, 

and the property was sold by referee’s sale for $1,150,000 to 

unrelated individuals. The district court confirmed the sale by 

an order filed December 2, 2011. After expenses of the sale, 

each of the one-third interests was worth $353,937.88. On 

January 20, 2012, the district court filed an order directing the 

clerk of the court to hold $203,937.88 of Benson’s share in an 

interest-bearing account until further ordered, and Benson was 

paid $150,000. Ashcraft and Gary were each paid their onethird interest of the proceeds.

On December 14, 2011, the appellees filed their amended 

complaint, which alleged the same two causes of action as 

the original complaint, along with a third cause of action for 

breach of contract. In the third cause of action, the appellees 

alleged that Benson breached the Purchase Agreement when 

she refused to perform the contract. The appellees sought damages constituting the sum of Benson’s share of the proceeds 

from the referee’s sale, minus the $150,000 purchase price set 

forth in the Purchase Agreement. On December 15, the appellees dismissed without prejudice the first and second causes 

of action in their amended complaint. Accordingly, the only 

remaining cause of action at trial and on appeal is the claim for 

breach of contract and resulting damages.

Benson filed her answer on December 30, 2011. In her 

answer, Benson generally denied the allegations of the amended 

complaint, and she affirmatively alleged that the Purchase 

Agreement had expired of its own accord; the appellees had not 

complied with their obligations under the Purchase Agreement; 

and her performance was excused, because the appellees had 
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failed to obtain financing pursuant to the Purchase Agreement 

in the timeframe set forth therein.

The parties filed cross-motions for summary judgment. The 

court denied the parties’ cross-motions for summary judgment.

A bench trial was held on February 27, 2013. At the trial, the 

appellees called five witnesses, including Mark, Cindi, both of 

the Kirbys, and Benson. The appellees offered and the court 

received 17 exhibits, which included the Purchase Agreement, 

the promissory note, various communications between the 

parties’ attorneys, the appellees’ attorney’s deposition, documents from the partition action, Benson’s affidavit, answers 

to requests for admissions, and answers to interrogatories. 

Benson called one additional witness, the president of the 

Nebraska State Bank in Oshkosh, Nebraska, and she offered 

and the court received one multipage exhibit, composed of 

documents filed by the appellees in connection with their 

loan application.

On August 2, 2013, the district court filed its order in which 

it found in favor of the appellees and against Benson. This is 

the order on appeal. In making its determinations, the court 

rejected Benson’s argument that the appellees were in breach 

of contract because they did not obtain financing pursuant to 

the terms of the Purchase Agreement. The court stated that “the 

financing clause was for the benefit of the [appellees] and was 

waived by them when they obtained alternate financing” from 

the Kirbys. The court determined that as of early August 2011, 

Benson “was in breach of the contract as the [appellees] were 

ready, willing and able to complete the terms of the contract.” 

The court further determined that

the reason [Benson] refused to complete the contract 

was because she was receiving less than what her sister 

received for a one third interest and she was upset about 

her sister’s handling of her mother’s finances. These reasons are extrinsic to the terms of the contract and are not 

valid reasons for non[-]performance under the contract.

Therefore, the court awarded the appellees the amount of 

$203,937.88 which had been deposited in the court, representing the amount of Benson’s one-third of the proceeds of the 
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partition sale, i.e., $353,937.88, minus the $150,000 already 

distributed to Benson per the Purchase Agreement.

For completeness, we note that the Purchase Agreement recognizes that on the date the Purchase Agreement was signed, 

the appellees had paid a $200 deposit to Benson, receipt for 

which was acknowledged, and that the remaining balance 

due was $149,800. Therefore, when the district court ordered 

the $150,000 be paid to Benson after the partition sale, she 

received $200 greater than she had bargained for. The appellees 

have not filed a cross-appeal seeking the $200, and we make 

no order with respect thereto.

Benson appeals.

ASSIGNMENTS OF ERROR

Benson claims on appeal that the district court erred when 

it (1) determined that the appellees could waive the financing 

clause in the Purchase Agreement, (2) determined that it was 

not a contractual precondition that the appellees obtain specific 

financing, (3) determined that Benson had breached the contract, and (4) failed to find repudiation of the contract.

STANDARDS OF REVIEW

[1] A suit for damages arising from breach of a contract 

presents an action at law. Thomas & Thomas Court Reporters 

v. Switzer, 283 Neb. 19, 810 N.W.2d 677 (2012).

[2] In a bench trial of an action at law, the trial court is the 

sole judge of the witnesses’ credibility and the weight to be 

given their testimony. Liljestrand v. Dell Enters., 287 Neb. 242, 

842 N.W.2d 575 (2014).

[3] The trial court’s factual findings in a bench trial of an 

action at law have the effect of a jury verdict and will not be 

set aside unless clearly erroneous. Braunger Foods v. Sears, 

286 Neb. 29, 834 N.W.2d 779 (2013).

[4] An appellate court independently reviews questions of 

law decided by a lower court. See Coffey v. Planet Group, 287 

Neb. 834, 845 N.W.2d 255 (2014).

ANALYSIS

The essence of the district court’s decision is that although 

the appellees stood ready, willing, and able to perform, 
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Benson unequivocally and without justification breached the 

Purchase Agreement, thus entitling the appellees to damages. On appeal, Benson asserts a variety of arguments. We 

consider Benson’s arguments below and determine that none 

have merit.

Marketability and Time 

for Performance.

Before analyzing Benson’s contentions, we consider some 

preliminary matters relevant to the Purchase Agreement in this 

case. In this regard, we examine the Purchase Agreement and 

determine that it is an enforceable contract and that the appellees and Benson were bound by the agreement and extension 

thereto. It is axiomatic that the title which is the subject of the 

Purchase Agreement should be marketable. See 14 Richard 

R. Powell & Michael Allan Wolf, Powell on Real Property 

§ 81.03[6] (2014). We adhere to the modern view that “marketable” and “merchantable” title are practically synonymous 

and that such title need not be free from every technical defect. 

See Holoubek v. Romshek, 16 Neb. App. 677, 749 N.W.2d 

901 (2008).

It is generally understood that the hazard of litigation concerning title is a circumstance rendering a title unmarketable. 

See, e.g., Chafetz v. Price, 385 So. 2d 104, 106 (Fla. App. 

1980) (stating that circumstance of present litigation surrounding title “is the paradigm of unmarketability”). However, the 

marketable title standard can be met if the purchaser specifically agrees to accept the title subject to pending litigation. See 

14 Powell & Wolf, supra, § 81.03[6][d][iv] (cases collected). 

In this case, paragraph 2 of the Purchase Agreement states 

that the appellees as purchasers are “purchasing the property 

subject to the pending Partition Action” to which, incidentally, 

they were named defendants. Therefore, the pending litigation 

does not preclude the transfer of the interest in the real property involved in the Purchase Agreement.

We also note that the property at issue is an undivided onethird interest rather than the entirety of the described real property. The transfer of undivided interests in real property has not 

met with disapproval. See, e.g., Klapka v. Shrauger, 135 Neb. 
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354, 281 N.W. 612 (1938). Benson’s interest is the proper subject of a real estate contract.

We next observe that the Purchase Agreement initially set 

a closing date of May 1, 2011, but was extended to March 

1, 2012, by agreement of the appellees and Benson. We have 

stated that a real estate contract which provides for a specific 

closing date requires closing within a reasonable time after that 

date unless the contract provides that time is of the essence. 

See Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604 (1998). 

The Purchase Agreement did not literally provide that “time 

was of the essence.” The closing as extended was set “on or 

before” March 1, 2012. The parties knew of the pending partition action and testified they were aware that the performance of the Purchase Agreement depended on Benson having 

title. As a treatise aptly states: “Seller cannot convey title that 

has been lost.” 14 Powell & Wolf, supra, § 81.03[6][d][iv] at 

81-140. Thus, performance would not be feasible after a certain date but before March 1, 2012, if Benson’s interest was 

conveyed to an unrelated purchaser in the partition action. 

Therefore, time, while not of the essence, was relevant to the 

successful performance of the Purchase Agreement.

Breach of Contract.

Benson contends she did not breach the Purchase Agreement. 

She initially makes numerous arguments related to the 30-day 

provision by which the appellees were to apply for a FSA loan 

and the 90-day provision by which such financing was to be 

secured. Benson contends that because these deadlines were 

not met according to these terms, the Purchase Agreement 

became null and void. Benson claims the district court erred 

when it concluded that these conditions were for the benefit 

of the appellees as purchasers and further erred when it found 

that the conditions were waived by the appellees when they 

obtained alternate financing within the timeframe provided. We 

find no merit to Benson’s claims of error.

[5] We have held that a party to a contract may waive the 

provisions made for his or her benefit. Gesell v. Reeves, 229 

Neb. 842, 429 N.W.2d 363 (1988). It has been observed that 
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“[r]eal estate sales contracts often contain a mortgage or financing contingency clause, usually for the benefit and protection 

of the purchaser in the event that the purchaser is unable to 

secure necessary financing by the date set for closing.” 60 Am. 

Jur. Proof of Facts 3d 445 Waiver of Strict Compliance § 17 at 

496 (2001 & Supp. 2013). That is, such “contingencies . . . are 

ordinarily for the benefit of the purchaser.” Id. at 496-97. See, 

also, Wesley N. Taylor Co. v. Russell, 194 Cal. App. 2d 816, 15 

Cal. Rptr. 357 (1961) (cases collected).

Whether the condition is for the benefit of the purchaser, 

or the seller, or both, depends on the facts and circumstances 

of each case and the language of the agreement. Fleischer v. 

McCarver, 691 S.W.2d 930 (Mo. App. 1985) (cases collected). 

In cases where it is determined that the inclusion of a financing 

provision is for the sole benefit of the purchaser, the cases also 

state that the seller’s “interest is in securing the purchase price 

[and] that the paramount obligation of the respective parties is 

the payment of the cash and the delivery of title to the property, 

and that the method of financing is incidental and not of the 

essence of the contract to convey.” See Wesley N. Taylor Co. v. 

Russell, 194 Cal. App. 2d at 828-29, 15 Cal. Rptr. at 365 (cases 

collected). We agree with the foregoing analysis and find it 

applicable to the case at bar.

In its order, the district court determined that the financing 

conditions were for the benefit of the appellees as purchasers and found the facts showed that Benson, as seller, was 

“not concerned about where the money came from as much 

as she was concerned about other extrinsic matters.” These 

matters included the higher price her sister, Ashcraft, might 

receive for her one-third interest and the ongoing dispute 

relating to their mother’s estate. The district court found that 

Benson “conceded that prior to making the decision not to 

close, she never questioned the [appellees] about the status of 

their financing.” The district court determined that under the 

facts and language of the Purchase Agreement, the financing 

terms were for the appellees’ benefit and that the appellees 

could and did waive the terms. The district court determined 

that the Purchase Agreement was an enforceable contract and 
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that the waiver did not render the Purchase Agreement null 

and void.

Having reviewed the law and record, we conclude that the 

district court’s recitation of the law to the effect that the appellees as purchasers could waive a condition for their benefit was 

correct and that its findings of fact were not clearly erroneous. 

We also observe that by agreeing to extend the closing date 

to March 1, 2012, Benson exhibited her willingness to waive 

the earlier financing deadlines, and that such fact lends further 

support to the district court’s determination that lack of adherence to the FSA financing provisions was not fatal.

Benson next contends that the district court erred when it 

failed to make an explicit finding that Benson repudiated the 

Purchase Agreement and further erred when it determined that 

Benson breached the Purchase Agreement. We find no merit to 

these assignments of error.

[6,7] We have stated that “‘[i]n order to constitute a repudiation, a party’s language must be sufficiently positive to be 

reasonably interpreted to mean that the party will not or cannot perform.’” Anderson Excavating v. SID No. 177, 265 Neb. 

61, 68, 654 N.W.2d 376, 382 (2002), quoting Restatement 

(Second) of Contracts § 250, comment b. (1981). The question 

whether there has been repudiation or whether repudiation was 

justified is a question of fact. Id.

The district court reviewed the evidence and found that 

prior to the partition sale when performance of the Purchase 

Agreement was still viable, “Benson communicated through 

her attorney on or about August 8, 2011, that she would not go 

through with the sale. (Exhibit 24) She testified at trial that she 

decided to go the partition route, because on August 8, 2011 

‘she was pissed that day.’” Exhibit 24 is an August 9, 2011, 

letter to Cindi from her attorney stating in part that the attorney had spoken to Benson’s attorney on August 8, the latter 

of whom “indicated that [Benson] is not agreeable to the sale 

of $150,000” and indicating that the appellees should not talk 

directly to Benson “as it just upsets her to discuss all this.” The 

district court found that at about this point in time, “Benson 

decided she was no longer willing to sell her one third interest 

to the [appellees].”
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Although the district court did not use the word “repudiation” to characterize these facts, the substance of its order 

amounts to a finding of an unequivocal statement by Benson 

that she would not perform, and therefore, the district court 

effectively found a repudiation by Benson. No further findings 

are necessary.

Benson next contends that the appellees were not capable 

of purchasing the real estate and that as a consequence, 

she did not breach the Purchase Agreement. We understand 

Benson’s arguments to generally include the suggestion that 

the appellees failed to tender a performance and specifically 

to challenge the district court’s determinations in its August 2, 

2013, order that Benson “was in breach of the contract as the 

[appellees] were ready, willing and able to complete the terms 

of the contract.” We find no merit to Benson’s assignments 

of error.

As we have noted, Benson repudiated the contract in August 

2011, which was during the extended lifetime of the Purchase 

Agreement and before the November 2011 partition sale. The 

repudiation occurred during a period when the obligations of 

the Purchase Agreement could have been performed. We have 

summarized the legal consequences of such a state of affairs 

as follows:

Where one party to an executory contract to sell and convey real estate, prior to breach by him and before time 

for performance by either party has arrived, unequivocally states that he cannot and will not perform, when the 

time of performance arrives, the other party may either 

treat such renunciation as an abandonment or breach of 

contract by affirmative election so to do, or he may treat 

such renunciation as inoperative, and await the time of 

performance and then hold the one party responsible for 

all consequences of nonperformance, including specific 

performance in a proper case, but in case he keeps the 

contract alive, it lives for the benefit of both parties, 

and he remains subject to all of his obligations under 

it, and enables the one party to complete the contract, 

notwithstanding his previous renunciation, with the same 

force and effect as if such prior renunciation had never 
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been made. Frost v. Knight, L. R. 7 Exch. 111; Roehm v. 

Horst, 178 U. S. 1, 20 S. Ct. 780, 44 L. Ed. 953; 13 C. J., 

Contracts, § 729, p. 655.

Lang v. Todd, 148 Neb. 726, 732, 28 N.W.2d 434, 437-38 

(1947).

[8] The record shows that Benson did not withdraw her 

repudiation, and the appellees accepted her repudiation as evidenced by their filing the instant action. As to a tender by the 

appellees, we have previously considered the relevance of tender in a case where a party unequivocally stated it would not 

perform. We stated: “An unqualified renunciation of an executory contract before time for performance by one party excuses 

tender of performance by the other party at the time set for 

performance.” Friehe Farms, Inc. v. Haberman, 191 Neb. 292, 

299, 214 N.W.2d 916, 920 (1974). Similarly, in Esplendido 

Apartments v. Olsson, 144 Ariz. 355, 361, 697 P.2d 1105, 1111 

(Ariz. App. 1984), it was observed that other courts have recognized that a buyer is relieved “of the obligation to tender 

performance where the seller has either refused to perform or 

is clearly unable to do so.”

At trial, referring to the Kirby note, Cindi testified that she 

repeatedly advised Benson “we were ready to go with it” and 

that she told Benson “[w]e had our financing lined up, and 

it was just a matter of when we wanted to do it.” Cindi also 

testified that she said nothing that could be construed as wanting to back out of purchasing Benson’s one-third interest. The 

district court credited this testimony as it was entitled to do. 

See Liljestrand v. Dell Enters., 287 Neb. 242, 249, 842 N.W.2d 

575, 580 (2014) (stating that “in a bench trial of an action at 

law, the trial court is the sole judge of the witnesses’ credibility 

and the weight to be given their testimony”).

The district court heard the witnesses and reviewed the 

documentary evidence and determined that the note between 

the Kirbys and the appellees was valid, that the Kirbys had the 

$150,000 referred to in the note on hand, and that the appellees “had the financing in place.” The district court determined 

that the appellees “were ready, willing and able to complete 

the terms of the contract.” Benson suggests that, even if ready, 

willing, and able, the appellees were nevertheless required 
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to tender the balance of the amount due under the Purchase 

Agreement in order to put her in default and to recover damages for breach of the contract. Because the law regarding tender is not so rigid, we reject Benson’s suggestion.

[9] In Klapka v. Shrauger, 135 Neb. 354, 361, 281 N.W. 

612, 616 (1938), we observed:

“A covenant by a purchaser to pay, and by the vendor to convey a good title, both to be performed at the 

same time, are mutually dependent, and neither party 

can claim a breach without a tender of performance and 

offer to perform upon due performance by the other, or, 

at least, proof of readiness and willingness to perform.” 

Nicolopoolos v. Hill, 59 A. L. R. 185 (217 Ala. 589, 117 

So. 185 [1928]).

(Emphasis supplied.)

As we indicated in Klapka, a complete tender of performance is not always indicated, and in some cases “‘proof of 

readiness and willingness to perform’” is all that is required. 

Klapka, 135 Neb. at 361, 281 N.W. at 616. Other courts are 

in agreement. When faced with facts somewhat similar to the 

instant case, the Supreme Court of Arizona in Kammert Bros. 

Enter., Inc. v. Tanque Verde Plaza Co., 102 Ariz. 301, 306, 428 

P.2d 678, 683 (1967), stated:

We must next consider whether the buyer was required 

to make a formal tender of the amounts due on the 

contract in order to recover damages for breach of the 

contract. Kammert Brothers [as seller] here had positively refused Tanque Verde’s offer to perform its duties 

under the contract. Therefore tender of the purchase 

price by the buyer was excused, since an actual tender 

is unnecessary where it is clear that the other party will 

not accept it, rendering the act useless. Lee v. Nichols, 

81 Ariz. 106, 301 P.2d 1022 (1956); Schmitt v. Sapp, 71 

Ariz. 48, 223 P.2d 403 (1950). It was sufficient that the 

buyer was ready, willing, and offered to perform. Lee v. 

Nichols, supra. It was clearly established that such was 

the case here.

We agree with the reasoning in Kammert Bros. Enter., Inc., 

and we apply it to this case. The district court found that 
Nebraska Advance She

698 288 NEBRASKA REPORTS

the appellees had financing in place and had expressed their 

ability and willingness to perform under the contract. In the 

face of Benson’s repudiation, the appellees were not required 

to tender the money due under the Purchase Agreement. 

Such would have been a useless act. The district court determined that the appellees’ efforts were sufficient and that thus, 

Benson was in breach at the time for performance. Based on 

the applicable law and the district court’s findings, which are 

supported by the record, we see no error. We find no merit 

to Benson’s assignments of error regarding repudiation and 

breach of contract.

CONCLUSION

The district court determined that Benson breached the 

Purchase Agreement by refusing to sell her interest in the property at issue and awarded damages to the appellees. For the 

reasons explained above, we find no merit to Benson’s assignments of error and, accordingly, affirm.

Affirmed