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Andrew Albrecht, appellee and cross-appe

v. Kevin Fettig, doing business as 

Cattle Company, appella

and cross-appelle

___ N.W.2d ___

Filed July 16, 2019. No. A-18-445.

1. Contracts: Appeal and Error. The interpretation of a contract is a 

question of law, in connection with which an appellate court has an 

obligation to reach its conclusions independently of the determinations 

made by the court below.

2. Judgments: Appeal and Error. In a bench trial of a law action, the trial 

court’s factual findings have the effect of a jury verdict and will not be 

disturbed on appeal unless clearly wrong.

3. 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.

4. Prejudgment Interest: Appeal and Error. Whether prejudgment interest should be awarded is reviewed de novo on appeal.

5. Uniform Commercial Code: Contracts. Under the Uniform 

Commercial Code, a buyer is given the right to reject the whole if the 

goods fail in any respect to conform to the contract.

6. ____: ____. An output contract is one in which the actual quantity 

of goods subject to the sale or purchase is indefinite. The quantity is 

determined by either the output of the seller or the requirements of 

the buyer.

7. ____: ____. Nebraska’s codification of the Uniform Commercial 

Code (particularly Neb. U.C.C. § 2-601 (Reissue 2001)) and Nebraska 

Supreme Court precedent make it clear that buyers may reject an entire 

delivery that in any way fails to conform to the contract.

8. Prejudgment Interest: Appeal and Error. Prejudgment interest may 

be awarded only as provided in Neb. Rev. Stat. § 45-103.02 (Reissue 

2016).

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/23/2019 12:07 AM CDT
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9. Prejudgment Interest: Claims. A claim is liquidated for purposes of 

prejudgment interest when there is no reasonable controversy as to both 

the amount due and the plaintiff’s right to recover.

Appeal from the District Court for Thurston County: John E

Samson, Judge. Affirme

David A. Domina, of Domina Law Group, P.C., L.L.O., and 

Stuart B. Mills for appellant.

Wendy J. Ridder, of Law Offices of Daniel P. Bracht, P.C., 

L.L.O., for appellee.

Pirtle, Arterburn, and Welch, Ju

Arterburn, Judg

INTRODUCTION

Kevin Fettig appeals from an order of the district court for 

Thurston County that ordered him to return a $6,000 deposit to 

Andrew Albrecht from an uncompleted cattle sale and awarded 

Albrecht incidental damages of $449.53, both of which carried 

a 3.61-percent postjudgment interest rate. The court initially 

ordered Fettig to pay prejudgment interest at a rate of 12 percent on the $6,000 deposit but subsequently granted Fettig’s 

motion to alter or amend, thereby ordering that no prejudgment interest was owed on the deposit. Albrecht cross-appeals 

from the order granting Fettig’s motion to alter or amend. For 

the reasons that follow, we affirm the district court’s award of 

damages to Albrecht totaling $6,449.53 and the district court’s 

amended order that eliminated the award of prejudgment interest on the $6,000 award.

BACKGROUND

Albrecht operates a cow-calf ranch in Thurston County, 

Nebraska, breeding and selling primarily Red Angus cattle. 

Although he performs some work individually, Albrecht also 

does some work through a business that involves his brother 

and father. That business holds an annual sale in April wherein 

it primarily sells Red Angus bulls. Albrecht’s individual 
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operation involves feeding cattle in his own feedlot and then 

selling them for slaughter. He prefers to feed primarily Red 

Angus cattle based on what he believes to be their superior 

performance and for the reason that prospective customers for 

the annual bull sale stop at his feedlots to view the cattle. He 

noted that buyers are more likely to bid at the annual bull sale 

when they have seen Red Angus cattle on the Albrecht family feedlots. Additionally, Albrecht is a member of the Red 

Angus Association.

Albrecht attributed his preference for Red Angus cattle to 

the cattle’s superior performance. In comparison to black-hided 

cattle, Albrecht’s father described Red Angus cattle as being 

more docile and more heat tolerant during the summertime. 

Steers that tolerate heat better are less likely to unexpectedly 

die. Albrecht’s brother also observed Red Angus steers’ better 

heat tolerance and docile temperament, noting that they are 

less likely to run in their pens and kick up dust, which can 

cause illness. Albrecht’s brother stated that he had paid more 

for red cattle than black cattle based on their coloration. He 

also noted that Red Angus steers can garner a higher price in 

the region due to years of ranchers’ culling red-hided cattle 

from their herds, which led to their scarcity as compared to 

black-hided cattle.

Fettig works as a rancher and cattle buyer, whereby he purchases cattle and resells them to buyers, including Albrecht. 

Albrecht bought cattle through Fettig when his normal cattle 

buyer was unavailable in May 2015. Although Albrecht wanted 

mostly red-hided steers, Fettig purchased mostly black-hided 

steers for Albrecht. Albrecht testified that Fettig apologized 

for “sending [him] the wrong color of cattle” following a prior 

transaction. Despite the cattle not meeting Albrecht’s specifications, Albrecht told Fettig that he would accept that particular 

shipment of cattle but would reject any future deliveries of the 

wrong color of cattle.

A few months later, in July 2015, Albrecht again retained 

Fettig to purchase cattle for him. Albrecht testified that they 
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discussed Albrecht’s desire to buy around 150 head of primarily red-hided cattle, and Fettig told Albrecht that there might 

be 5 head of black-hided cattle in the order. Fettig prepared 

a contract for the sale, which described that the cattle would 

be 80 percent red hided and 20 percent black hided. Fettig 

testified that he did not make statements indicating that there 

would be less than 20 percent black-hided cattle. However, 

Albrecht said that the contract varied from their initial conversation and that he called Fettig to discuss the description 

of cattle as 80 percent red hided and 20 percent black hided. 

According to Albrecht, Fettig said that he included the percentages only to “cover his bas[e]s” but that he nonetheless 

intended for there to be only a few black-hided steers in 

the delivery.

The contract for the purchase of livestock is dated July 

15, 2015, and signed by both parties. A number of terms are 

handwritten, including the quantity of steers, their description, and the price. Albrecht and Fettig both testified that all 

the handwritten terms on the contract were written by Fettig. 

The quantity is given as “APPROX 150 - HD,” which both 

parties understood to mean approximately 150 head of cattle. 

Albrecht testified that he understood he could receive some 

deviation from 150 head of cattle, such as receiving 151 head 

of cattle. The contract describes the cattle to be delivered as 

“80% Red Angus cross [and] 20% Bl[ac]k Angus cross steers” 

at a base average weight of 780 pounds. The price is given as 

$235 per hundredweight. Additionally, a sliding price scale 

was provided whereby the price could be adjusted up to $0.15 

per pound if the average weight of the steers was higher or 

lower than the 780-pound base weight stated in the contract. 

The contract memorialized a “country deal” according to the 

parties, which is signed with an understanding that delivery 

will occur at a date in the future. In this case, as in many such 

deals, the buyer did not view the cattle prior to signing the 

contract. Here, the contract specified a delivery window of 

between October 10 and 25, 2015. As part of the negotiation, 
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Fettig informed Albrecht of the ranch from which he would be 

buying the steers in North Dakota, which included a discussion 

of the owner and the Red Angus bulls the owner utilized for 

the cattle he raised and sold. Fettig and the owner, Randy Kahl, 

executed a contract for the sale of the steers to Fettig, which in 

turn were sold to Albrecht.

The parties spoke by telephone on a number of occasions 

in early October 2015, prior to the delivery of the steers. 

During one of these conversations, Fettig indicated that there 

were 10 additional head of cattle that were ready for delivery 

if Albrecht was interested. Albrecht confirmed that he was 

interested in purchasing the 10 additional head and negotiated 

a price for them of $189 per hundredweight because prices in 

the cattle market had gone down since they signed the original 

contract in July. Albrecht testified that the additional 10 head 

of cattle fell outside the “approximately” term of their original contract. However, Fettig testified that he asked Albrecht 

about the 10 additional head of cattle and negotiated a new 

price as a “courtesy,” even though he believed that he could 

have included them under the “approximately” term of the 

original contract.

The cattle were delivered to Albrecht late at night on October 

14, 2015, after it was dark outside. The next morning, Albrecht 

saw the cattle in the daylight and observed that there were a lot 

of black-hided steers: “I knew there was more than 20 percent 

without even counting them . . . .” Albrecht also observed a 

few “butterscotch” steers, which he believed to have Charolais 

genetics. In preparation for trial, Albrecht counted the steers 

from a video he took and found 88 red steers, 68 black steers, 

and 4 butterscotch steers.

Albrecht called Fettig on October 15, 2015, and expressed 

frustration and displeasure at receiving so many black steers. 

Fettig offered to take back the black steers, leaving Albrecht 

with 88 head of red steers, but Albrecht rejected that offer. 

Albrecht testified that Fettig’s offer was unsatisfactory to him 

because it would leave him with a partial pen of cattle, which 
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would result in a higher cost of feeding each cow given that 

the labor required to feed a partial pen of cattle is no different 

than is needed to feed a full pen. According to Albrecht, Fettig 

never offered to bring more red cattle.

After discussing the mix of cattle delivered with his brother, 

father, and an attorney, Albrecht called Fettig on October 16, 

2015, and rejected the delivery based on the inclusion of too 

many black steers. Albrecht also noted that the contract did 

not allow for the delivery of any butterscotch steers. Albrecht 

testified that Fettig made no offers after he rejected the delivery on October 16. Despite having until October 25 to cure the 

problem, Fettig admitted that he made no efforts to find more 

red cattle to meet the 80-percent threshold after Albrecht’s 

rejection on October 16. Fettig testified that he did not work 

to find additional red steers “[b]ecause the door was slammed 

on me to take them all back and he refused them.” Kahl testified that he informed Fettig that he had more red steers available, which could have been swapped for black steers. He did 

note that the additional red steers would weigh less than the 

780-pound average called for in the contract but that the slide 

could be applied.

Fettig sent trucks to pick up all the steers on October 17, 

2015, and return them to North Dakota. Between the time the 

cattle were delivered to Albrecht on October 14 and when the 

cattle were picked up on October 17, Albrecht said he fed 

them as he would feed his own cattle—giving them hay, silage, 

corn, and “modified distillers.” Albrecht testified that he told 

Fettig he was feeding the cattle and discussed whether Fettig 

wanted them fed before being loaded onto trucks for the return 

trip to North Dakota. However, Fettig testified that he did not 

recall Albrecht discussing feeding the cattle but acknowledged 

that Albrecht discussed administering an antibiotic mix to 

the cattle.

Before loading the cattle for their return trip, Albrecht asked 

that Fettig refund the $6,000 deposit he paid. Fettig agreed and 

(at Albrecht’s insistence) drafted a written agreement reflecting 
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the repayment promise pursuant to Albrecht’s request. Fettig 

emailed that agreement to Albrecht, which also included a 

provision requiring Fettig to pay the trucking bill from North 

Dakota to Nebraska. The agreement was dated October 17, 

2015. Although Fettig testified that Albrecht made no threats 

to coerce him to sign the repayment agreement, he also stated 

that Albrecht was “forcing [his] hand” because Albrecht stated 

he would not load the cattle until Fettig signed the repayment 

agreement. Albrecht testified that he made no threats of any 

kind to induce Fettig to sign the repayment agreement. He 

simply wanted their verbal agreement in writing because he 

“didn’t trust [Fettig] at that point anymore.” Fettig signed 

the repayment agreement, and Albrecht loaded the cattle for 

the return trip to North Dakota. Fettig admitted that he never 

returned Albrecht’s $6,000 deposit. Fettig testified that he had 

the steers transported back to a feedlot in North Dakota. He 

maintained ownership of the cattle, paying for them to be fed. 

He ultimately sold the cattle at a sale barn at a price below the 

price contracted for with Albrecht.

Between October 17 and 25, 2015—the close of the performance period provided in their purchase agreement—Fettig and 

Albrecht had no contact. On November 9, Albrecht text messaged Fettig to inquire about the $6,000 deposit refund. Fettig 

replied and told Albrecht that he had filed a lawsuit against 

Albrecht and that his attorney instructed him not to discuss 

the matter.

Albrecht then filed a complaint in the county court for 

Thurston County on November 11, 2015, alleging that Fettig 

breached their written purchase agreement that was dated July 

15, 2015. Albrecht alleged that he was damaged in the amount 

of the $6,000 deposit he paid to Fettig, the yardage and feed 

costs incurred by housing the cattle from October 14 to 17, 

transportation costs, and the labor and miscellaneous costs 

associated with loading the cattle for their return trip.

On December 14, 2015, Fettig filed an answer and counterclaim. Fettig’s counterclaim alleged that Albrecht breached 
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their written purchase agreement that was dated July 15, 

2015, by refusing to accept delivery of cattle that complied 

with their agreement. Fettig requested that the court award 

to him damages in the amount of the value lost on the cattle 

between their delivery to Albrecht and their eventual sale on 

December 5, 2015, along with associated costs and expenses 

he incurred.

The matter was subsequently transferred to district court 

on July 28, 2016. Fettig filed an amended answer and counterclaim on September 14, which more specifically set forth 

damages. Trial on the matter occurred on November 28 and 

December 13, 2017. Albrecht testified and offered the testimony of four other witnesses. Fettig also testified but called no 

other witnesses. He did offer the deposition testimony of Kahl, 

which was received. Numerous exhibits were admitted.

Following trial, the court entered its order on February 7, 

2018. Specifically, the court noted that “Albrecht was a very 

credible witness and that his testimony regarding the conversations and dealings between he and . . . Fettig was believable 

and persuasive.” The court found that Albrecht had never 

accepted delivery of the cattle and verbally notified Fettig 

of the issue regarding the cattle’s coloration on October 15, 

2015, after Albrecht saw the cattle in the daylight for the first 

time. On October 16, Albrecht officially rejected the cattle. 

The court found Albrecht’s testimony credible that Fettig’s 

only offer to cure was his offer to remove all the black-hided 

steers, which would leave Albrecht with significantly fewer 

than the approximately 150 head of cattle called for in the 

purchase agreement. The court found that Fettig made no other 

attempts to cure the delivery before the final performance 

date of October 25, 2015, and that if the only action taken 

by Fettig was to take back the black cattle, he would still 

have breached the contract’s requirements as to the number of 

cattle delivered.

The court held that the parties’ agreement did not limit 

Albrecht’s right to reject the cattle. Instead, the provision that 
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unmerchantable cattle—those exhibiting disease and deformities—could be rejected was a nonexclusive ground on which 

Albrecht could reject the cattle delivery. Moreover, the court 

held that Albrecht was entitled under Nebraska’s Uniform 

Commercial Code (U.C.C.) to reject the entire delivery, accept 

the entire delivery, or accept any portion of the delivery and 

reject the rest. Albrecht’s rejection of the entire cattle delivery was therefore allowed under the U.C.C. Finally, the court 

found that Fettig had not met his burden of proof regarding his 

counterclaim and therefore dismissed the counterclaim.

The court awarded damages to Albrecht based on Fettig’s 

breach. The court ordered Fettig to refund Albrecht’s $6,000 

deposit. The court ordered Fettig to pay 12 percent prejudgment interest on the $6,000 deposit from October 17, 2015, 

and 12 percent postjudgment interest. The court also ordered 

Fettig to pay incidental damages based on the costs Albrecht 

incurred in caring for the cattle on his property from October 

14 through 17, totaling $449.53, and attached postjudgment 

interest at the rate of 3.61 percent until paid in full. The court 

found that Albrecht did not meet his burden of proof as to 

establishing the amount of the trucking bill, so it awarded no 

damages related to trucking expense.

Fettig filed a motion to alter or amend on February 15, 2018, 

arguing that prejudgment interest was inappropriate and that a 

postjudgment interest rate of 12 percent was also inappropriate. A brief hearing was held on April 11, 2018. In ruling from 

the bench, the court’s rationale centered on Albrecht’s failure 

to plead prejudgment interest. On April 13, the court amended 

its order to reflect a 3.61-percent postjudgment interest rate as 

to the $6,000 judgment for the deposit and eliminated any prejudgment interest award.

Fettig now appeals, and Albrecht cross-appeals.

ASSIGNMENTS OF ERROR

Fettig assigns, restated, that the district court erred in finding that Albrecht could reject the cattle for failing to consist of 
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approximately “80% red-hided and 20% black-hided steers,” 

that Fettig had failed to notify Albrecht of his intention to cure 

the purported breach, and that Albrecht repudiated the contract 

before the performance period closed.

Albrecht assigns that the district court erred in vacating its 

award of 12 percent prejudgment interest on the $6,000 deposit 

owing to Albrecht from October 17, 2015.

STANDARD OF REVIEW

[1-3] The interpretation of a contract is a question of law, in 

connection with which an appellate court has an obligation to 

reach its conclusions independently of the determinations made 

by the court below. Omaha Police Union Local 101 v. City of 

Omaha, 292 Neb. 381, 872 N.W.2d 765 (2015). In a bench trial 

of a law action, the trial court’s factual findings have the effect 

of a jury verdict and will not be disturbed on appeal unless 

clearly wrong. Bloedorn Lumber Co. v. Nielson, 300 Neb. 722, 

915 N.W.2d 786 (2018). 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. Stauffer v. Benson, 288 

Neb. 683, 850 N.W.2d 759 (2014).

[4] Whether prejudgment interest should be awarded is 

reviewed de novo on appeal. Roskop Dairy v. GEA Farm Tech., 

292 Neb. 148, 871 N.W.2d 776 (2015).

ANALYSIS

The U.C.C. applies to transactions in goods. Neb. U.C.C. 

§ 2-102 (Reissue 2001). The U.C.C. defines the term “goods” 

as “all things (including specially manufactured goods) which 

are movable at the time of identification to the contract for 

sale other than the money in which the price is to be paid, 

investment securities (article 8) and things in action.” Neb. 

U.C.C. § 2-105 (Reissue 2001). This matter involves a sale 

of cattle, which are movable at the time of identification in 

the parties’ purchase agreement. Thus, the U.C.C. governs 

this matter.
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Albrecht’s Rejection of 

Fettig’s Delivery.

Fettig argues on appeal that the written purchase agreement 

exclusively limited Albrecht’s right of rejection to unmerchantable cattle—those that are diseased, crippled, or deformed. 

He argues that Albrecht could not reject the cattle for failing 

to be a “‘perfect-tender’” under the terms of their purchase 

agreement. Brief for appellant at 18. Fettig also argues that 

their purchase agreement was an “output contract” and did not 

call for delivery of exactly 80 percent red-hided steers and 20 

percent black-hided steers. Id. at 30. For the reasons that follow, we agree with the district court that Albrecht could reject 

Fettig’s delivery because the steers he delivered were not 80 

percent red hided and 20 percent black hided.

An agreement between parties may provide remedies in 

addition to, or in substitution for, those remedies provided in 

article 2 of the U.C.C. Neb. U.C.C. § 2-719(1)(a) (Reissue 

2001). Resort to a remedy as provided is optional unless the 

remedy is expressly agreed to be exclusive, in which case it 

is the sole remedy. § 2-719(1)(b). Section 2-719(1)(b) creates 

a presumption that contract clauses prescribing remedies are 

cumulative rather than exclusive. § 2-719, comment 2. If the 

parties intend that the contract term describes the sole remedy 

under the contract, this must be clearly expressed. Id.

[5] Where goods or the tender of delivery fail in any respect 

to conform to the contract, the buyer may reject the whole, 

accept the whole, or accept “any commercial . . . units and 

reject the rest.” Neb. U.C.C. § 2-601 (Reissue 2001). Under 

the U.C.C., a buyer is given the right to reject the whole if the 

goods fail in any respect to conform to the contract. Maas v. 

Scoboda, 188 Neb. 189, 195 N.W.2d 491 (1972).

[6] An output contract is one in which the actual quantity of goods subject to the sale or purchase is indefinite. 

Meyer v. Sandhills Beef, Inc., 211 Neb. 388, 318 N.W.2d 

863 (1982). The quantity is determined by either the output 
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of the seller or the requirements of the buyer. Id. A lawful 

output contract imposes an obligation upon the seller to use 

best efforts to supply the goods and upon the buyer to use 

best efforts to promote their sale. See Neb. U.C.C. § 2-306(2) 

(Reissue 2001).

In the present case, the parties’ purchase agreement provides 

that Albrecht, as the buyer, may reject any cattle that are not 

in a merchantable condition. However, the agreement does not 

describe this remedy as the sole remedy under the contract. In 

the absence of such clear expression of exclusivity, a remedy 

is presumed cumulative—not exclusive—under § 2-719(1)(b). 

Nevertheless, Fettig contends that the Latin phrase “expressio 

unius est exclusio alterius,” which means “the expression of 

one thing is the exclusion of the other,” ought to be applied 

here to show that Albrecht was limited under their agreement 

to rejecting the delivery only if the cattle were unmerchantable. Brief for appellant at 15. Our codified adoption of the 

U.C.C. supplants general principles of interpretation, and we 

will adhere to the presumption that remedies are cumulative 

unless exclusivity is clearly expressed. Therefore, like the district court, we will not read into the contract the addition of 

terms that do not appear, and thus, we find that Albrecht was 

entitled to reject the cattle delivered for reasons beyond their 

merchantable condition.

The contract that Fettig drafted specified that he was to 

provide to Albrecht approximately 150 head of cattle that were 

80 percent red hided and 20 percent black hided. They subsequently negotiated the sale of an additional 10 head of cattle. 

Fettig delivered 88 red steers, 68 black steers, and 4 butterscotch steers. That amounted to 160 head of cattle that were 

55 percent red hided, 42.5 percent black hided, and 2.5 percent 

butterscotch hided. Thus, the cattle delivered did not conform 

to the terms of the contract, entitling Albrecht to reject the 

entire delivery, accept the entire delivery, or accept “any commercial . . . units and reject the rest.” See § 2-601. Albrecht 

elected to reject the entire delivery.
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[7] Fettig argues that the so-called perfect tender rule has 

eroded over time and only stands for the proposition that 

buyers may reject a substantially nonconforming delivery. 

Nebraska’s codification of the U.C.C. (particularly § 2-601) 

and our Supreme Court precedent make it clear that buyers 

may reject an entire delivery that in any way fails to conform 

to the contract. See, e.g., Maas v. Scoboda, supra. Even if 

we accepted Fettig’s position as correct, which we decline to 

do, it is unreasonable to suggest that the delivery in this case 

substantially conformed to the contract. The contract specified 

that Fettig was to deliver cattle that were 80 percent red hided 

and 20 percent black hided, but Fettig instead delivered cattle 

that were 55 percent red hided and 42.5 percent black hided. 

Fettig’s delivery was much more than a slight deviation from 

the terms of the contract.

At trial, Fettig and Kahl testified that there would be no difference in the price paid for cattle, whether red hided or black 

hided. They testified that the key provision in a “country deal” 

was the weight and that cattle feeders are not concerned about 

hide color. Based on this testimony, Fettig essentially argues 

that the color of the steer delivered is of no consequence so 

long as the underlying genetics and weight meet the contract’s 

requirements. Albrecht testified that color was a critical factor 

in his decision to enter the contract and noted his insistence 

to Fettig that the cattle delivered be, at minimum, 80 percent 

red hided. Moreover, he testified to his dissatisfaction with a 

past shipment of cattle that did not conform to the description 

provided by Fettig. While Fettig and Kahl may have disagreed 

that color of the cattle was important, the evidence demonstrated that Fettig agreed to deliver what Albrecht demanded 

but failed to deliver on his promise.

Fettig also urges us to decide that the contract term 

“approximately” ought to be applied to both the quantity and 

the proportion of red-hided to black-hided steers. The plain 

language of the contract demonstrates that “approximately” 

only attached to the quantity. Nevertheless, even if we again 
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accept Fettig’s proposition that he was required to deliver 

approximately 80 percent red-hided steers and approximately

20 percent black-hided steers, his delivery does not conform 

to that fictional iteration of the contract. We cannot find that 

a delivery of 55 percent red-hided steers satisfies the requirement of delivering approximately 80 percent red-hided steers, 

nor that a delivery of 42.5 percent black-hided steers satisfies the requirement of delivering approximately 20 percent 

black-hided steers. Fettig’s delivery did not comply with the 

contract, and Albrecht was therefore entitled to reject the 

entire delivery.

Lastly, Fettig argues that the contract here was an output 

contract, which necessitated that both parties deal in good faith. 

Notwithstanding Fettig’s admission that he did not attempt to 

load steers for delivery that were 80 percent red hided and 20 

percent black hided, we find no indication that either party 

dealt in bad faith. However, we also find that the contract here 

was not an output contract. Albrecht agreed to buy a set number of steers that also met weight and hide-color requirements. 

The inclusion of the term “approximately” does not negate the 

defined nature of the parties’ contract. The parties did not sign 

an output contract because Albrecht did not agree to buy, for 

example, all the red-hided steers that Fettig could secure or all 

the steers that weighed 780 pounds. The contract’s quantity 

was a definite, albeit approximate, term and unlike those found 

in output contracts.

Based on the foregoing, we agree with the district court that 

Albrecht was entitled to reject the cattle delivery because it did 

not include 80 percent red-hided and 20 percent black-hided 

steers. Albrecht’s right to reject on this ground existed notwithstanding the contract’s additional ground for rejection if the 

cattle were unmerchantable.

Fettig’s Purported Cure.

Fettig argues on appeal that he notified Albrecht of his 

intention to cure the nonconforming delivery by offering to 
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pick up the black-hided steers. We agree with the district 

court that Fettig’s purported offer to cure would have actually resulted in another material breach of the contract. Thus, 

we affirm the district court’s finding that Fettig failed to 

timely notify Albrecht of his intention to appropriately cure 

the breach.

Where any tender or delivery by the seller is rejected 

because nonconforming and the time for performance has not 

yet expired, the seller may seasonably notify the buyer of his 

intention to cure and may then within the contract time make a 

conforming delivery. Neb. U.C.C. § 2-508(1) (Reissue 2001).

Albrecht and Fettig agree that the contract required performance before October 25, 2015. The parties also agree that 

Albrecht rejected Fettig’s delivery of the cattle on October 

16, meaning that Fettig had from October 16 until October 

25 to notify Albrecht of his intention to cure and then make 

a conforming delivery. Fettig argues that he did attempt to 

cure because he “offered to pick up the black cattle . . . 

Albrecht did not want.” Brief for appellant at 31. Fettig also 

argues that Albrecht did not request the delivery of additional 

red steers.

The very nature of curing a nonconforming delivery is to 

make a conforming delivery. As the district court noted in its 

order, if Fettig had taken back all the black cattle, then the 

resulting delivery would not conform to the required quantity 

of cattle to be delivered. Even if Fettig took back some but 

not all of the black cattle, then the 80-20 proportion may be 

achieved, but the quantity requirement would remain unmet. 

Aside from Fettig’s offer to take back the black cattle, he 

made no other potential offers to cure. We note that, between 

the cattle returning to North Dakota on October 17 and the 

performance period’s conclusion on October 25, the parties had 

no contact. We also note that Fettig admitted to not attempting 

to secure additional red-hided steers despite Kahl’s offer to 

provide him with additional red steers.
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We agree with the district court that Fettig never timely 

notified Albrecht that he intended to appropriately cure the 

breach as Fettig’s purported offer to cure would have actually 

resulted in other breaches. Therefore, we affirm the district 

court’s finding that Fettig failed to notify Albrecht of his intention to cure the nonconforming tender.

Albrecht’s Purported Repudiation.

Fettig’s final argument on appeal is that the district court 

erred by failing to find that Albrecht repudiated the contract 

prior to the time allowed for Fettig to perform his contractual 

obligations. Specifically, Fettig argues that Albrecht repudiated the contract because he “told . . . Fettig to take back 

all the cattle — and not just bring some reds and take back 

some blacks.” Brief for appellant at 35. The district court in 

essence found that Albrecht did not repudiate the contract by 

rejecting the entirety of the nonconforming delivery as was 

his right under § 2-601 by finding that Fettig retained the 

ability to cure the breach. The evidence supports the district 

court’s finding. Although the parties did have some discussion regarding a cure, the only action offered by Fettig was to 

pick up some or all of the black steers. After Albrecht rejected 

this offer and rejected the delivery, Fettig was still free to 

attempt to fulfill the provisions of the contract. Instead, he 

arranged for removal of all of the cattle and prepared a second 

contract that provided for how the parties would accomplish 

the return. His own testimony demonstrates no postrejection 

efforts to meet the terms of the original contract. Thus, we 

cannot say the district court erred by failing to conclude that 

Albrecht repudiated the parties’ contract before the performance period concluded.

Albrecht’s Claim for 

Prejudgment Interest.

We now turn to Albrecht’s cross-appeal. Albrecht alleges 

that the district court erred in vacating its February 7, 2018, 
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order, which awarded prejudgment interest at a rate of 12 

percent on the $6,000 damage award. During the hearing on 

Fettig’s motion to alter or amend, the district court found that 

there was no specific request in Albrecht’s complaint for prejudgment interest. The court found that the request found in 

Albrecht’s complaint for “such other and further relief as the 

Court deems just and equitable” did not sufficiently plead a 

request for prejudgment interest in order for a recovery to be 

made. The court noted its opinion that prejudgment interest is 

not equitable in nature. Although our rationale varies somewhat from that utilized by the district court, we agree with the 

court’s conclusion.

[8,9] Prejudgment interest may be awarded only as provided 

in Neb. Rev. Stat. § 45-103.02 (Reissue 2010). Roskop Dairy 

v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015). 

Subsection (2) of § 45-103.02 provides that interest shall 

accrue on the unpaid balance of liquidated claims from the 

date the cause of action arose until the entry of judgment. A 

claim is liquidated for purposes of prejudgment interest when 

there is no reasonable controversy as to both the amount due 

and the plaintiff’s right to recover. Roskop Dairy v. GEA Farm 

Tech., supra. Interest shall be allowed at the rate of 12 percent per annum on money due on any instrument in writing. 

Neb. Rev. Stat. § 45-104 (Reissue 2010). For purposes of our 

analysis, we assume without deciding that Albrecht’s claim 

is liquidated.

Albrecht argues that his claim was liquidated and that his 

request for “further relief as the Court deems just and equitable” was sufficient to put Fettig on notice that prejudgment 

interest could be awarded. He urges us to adopt a rule that 

prejudgment interest be ordinarily granted unless exceptional 

or unusual circumstances make the award inequitable. See J.C. 

Brager Co., Inc. v. Chesen, 999 F. Supp. 675 (D. Neb. 1998). 

However, our review of the pertinent case law and rules of 

pleading lead us to a different conclusion.
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The most recent case in Nebraska to address this issue is 

Life Investors Ins. Co. v. Citizens Nat. Bank, 223 Neb. 663, 

392 N.W.2d 771 (1986). In that case, the Nebraska Supreme 

Court held that if a party does not pray for prejudgment interest, none can be provided. The basis for the Supreme Court’s 

opinion was Neb. Rev. Stat. § 25-804 (Reissue 1985), which 

was repealed in 2002. That statute provided in part that special damages be stated in a petition “and if interest thereon 

be claimed, the time from which interest is to be computed 

shall also be stated.” We note that not only has § 25-804 been 

repealed, but the decision made in Life Investors Ins. Co. predates the adoption of § 45-103.02(2). Therefore, we must analyze the interplay between § 45-103.02(2) with the court rule 

which has replaced § 25-804.

In 2002, the Legislature repealed Neb. Rev. Stat. § 25-801 

through § 25-823 (Reissue 1995), which statutes related to 

pleadings, and adopted Neb. Rev. Stat. § 25-801.01 (Reissue 

2016), which empowered the Supreme Court to adopt rules 

of pleading in civil actions “which are not in conflict with 

the statutes governing such matters.” Pursuant to § 25-801.01, 

the Supreme Court promulgated the Nebraska Court Rules of 

Pleading in Civil Cases. Pertinent to this case is Neb. Ct. R. 

Pldg. § 6-1108(a), which provides, in part, “If the recovery of 

money be demanded, the amount of special damages shall be 

stated . . . ; and if interest thereon be claimed, the time from 

which interest is to be computed shall also be stated.” We note 

that the language of the rule as it relates to interest is identical 

to the language that previously existed in § 25-804. Therefore, 

absent a distinguishing factor, it would appear that we would 

be required to follow the holding of Life Investors Ins. Co., 

supra, and find that since Albrecht did not state a time from 

which interest should be computed in his prayer for relief, his 

request for prejudgment interest must fail.

This leads us back to our analysis of § 45-103.02(2), 

which provides that prejudgment interest “shall accrue on the 

unpaid balance of liquidated claims from the date the cause 
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of action arose until the entry of judgment.” (Emphasis supplied.) This provision was adopted after Life Investors Ins. 

Co. was decided but before the adoption of Neb. Ct. R. Pldg. 

§ 6-1108(a). We recognize that a tension appears to exist 

between the statute and the court rule, but we do not believe 

that this tension is irreconcilable. Section 45-103.02(2) clearly 

sets out the availability of prejudgment interest. However, the 

court rule (adopted as part of the introduction of notice pleading to Nebraska) is concerned with litigants having adequate 

notice of the relief a plaintiff is seeking to obtain. Therefore, 

although the rule does place a procedural condition on a plaintiff’s ability to recover prejudgment interest, it does not negate 

a plaintiff’s ability to recover. Moreover, the rule secures a 

defendant’s ability to have notice of the entire scope of the 

relief requested and prepare defenses thereto. Therefore, for 

the foregoing reasons, we affirm the decision of the district 

court to deny prejudgment interest to Albrecht.

CONCLUSION

We therefore affirm the district court’s order awarding to 

Albrecht a refund of his $6,000 deposit, incidental damages 

amounting to the cost of caring for the cattle between delivery 

and return, and court costs. We also affirm the district court’s 

order denying prejudgment interest on the $6,000 judgment 

for return of the deposit.

Affirmed