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Contracts Keyed to Jimenez
First National Bank of Omaha v. Three Dimension Systems Products, Inc.
Facts
The First National Bank of Omaha (Bank) (plaintiff) entered an agreement with Three Dimension Systems Products, Inc. (3D) (defendant), under which 3D was to make a PC programming software program for the Bank. After 3D conveyed Stage I of the program to the Bank, 3D sent the Bank a receipt for an extra $250,000. 3D likewise educated the Bank that 3D would not be fixing any errors in Stage I after conveyance. The Bank sued 3D for anticipatory breach, contending that 3D had anticipatorily breached by declining to ensure that Stage I would work accurately and by demanding the $250,000. 3D counterclaimed for breach of the agreement and shielded itself on the premise that the Bank had not given 3D a chance to cure the alleged breach. The Bank's proof included records from 3D concerning the 10-day fixing period and the $250,000 receipt. The Bank additionally presented declaration that 3D's president had orally indicated that any Stage I mistakes would not be settled until Stage III or IV, if at all, and that 3D would not proceed onward to the following phase of advancement unless and until the point that the receipt had been paid. The Bank's confirmation additionally proposed that the agreement did not approve the receipt. 3D contended that it would have fixed any errors in the later phases of the project and that its continued performance was not conditioned on the Bank’s payment of the invoice. A jury decided for the Bank, finding that 3D had anticipatorily breached the agreement. Nonetheless, the district court granted 3D's motion for judgment as a matter of law. The Bank appealed.
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