Volume 245 — Nebraska Reports

1. Actions: Contracts: Rescission: Equity. An action to rescind a written instrument is an equity action. 2. Specific Performance: Equity. An action for specific performance sounds in equity. 3. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, when credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. 4. Final Orders: Jurisdiction: Appeal and Error. An appellate court is not bound by the parties' acquiescence or consent as to whether a district court has entered a final order which would confer jurisdiction upon the appellate court. 5. ___: ___: ___. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. 6. ___: ___: ___. In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction. 7. Final Orders: Words and Phrases. A final order is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a<page_number>Page 470</page_number> special proceeding, or upon a summary application in an action after judgment. 8. Judgments: Contracts: Specific Performance. A decree for specific performance must as nearly as possible order the contract's performance according to its terms. 9. ___: ___: ___. In decreeing specific performance, a court of equity must require the performance of some certain and specific act which ought to be performed by the delinquent party, and it cannot enter a general decree that in the future the delinquent party shall perform the acts required of him by his contract. 10. ___: ___: ___. Decrees ordering specific performance should state what the defendant must do without reference to other documents and without the necessity of interpreting other documents. 11. Contracts: Intent. A written contract expressed in unambiguous terms is not subject to interpretation or construction, and the intention of the parties to such a contract must be determined from its contents. 12. Contracts. Words used in a contract must be given their plain and ordinary meaning, as ordinary, average, or reasonable persons would understand them. 13. Contracts: Time. What constitutes a reasonable time for the performance of a contract must be determined from the general nature and circumstances of each case. 14. Contracts: Rescission. In determining whether a rescission took place, courts look not only to the language of the parties but to all the circumstances. 15. ___: ___. When a party seeks the aid of a court to rescind a contract, the bringing of the action is sufficient disaffirmance of the contract for purposes of the action. 16. ___: ___. On rescission of a contract, the rights and duties which have accrued under the rescinded contract are terminated and nullified. 17. Laches. The defense of laches is not favored in Nebraska. It will be sustained only if a litigant has been guilty of inexcusable neglect in enforcing a right to the prejudice of his adversary. 18. Laches: Time. Laches does not result from the mere passage of time, but from the fact that during the lapse of time, circumstances changed such that to enforce the claim would work inequitably to the disadvantage or prejudice of another. 19. Waiver: Words and Phrases. A waiver is a voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person's conduct. 20. Waiver: Estoppel. In order to establish a waiver of a legal right, there must be clear, unequivocal, and decisive action of a party showing such a purpose, or acts amounting to estoppel. 21. Equity: Fraud. Under the doctrine of unclean hands, a person who comes into a court of equity to obtain relief cannot do so if he or she has acted inequitably, unfairly, or dishonestly as to the controversy in issue.