concurring in part and in part dissenting.
I concur in part and dissent in part. I agree with the court’s opinion in every respect except in the court’s holding that while defendants “presented evidence of a dispute in their motions for summary judgment, none presented evidence of a bona fide dispute ....” I believe that the requirements of Neb. Rev. Stat. § 25-1332 (Reissue 1979) have been met and that the “pleadings ... together with the affidavits... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The “material fact” in question here is whether there was a bona fide dispute between plaintiff and defendants — not the details of, or the validity of, the contentions of the two sides of that dispute. The definition of bona fide dispute, as set out in Doyle v. Gordon, 158 N.Y.S.2d 248, 259-60 (1954), and cited in the majority opinion, is expanded in the succeeding sentence in the Doyle opinion at 260: “The existence of defendants’ good faith as a substantive fact, therefore, necessitates an examination and evaluation of external manifestations as well.”
I agree with the statement in Schuttinger v. Woodruff, 259 N.Y. 212, 216, 181 N.E. 361, 362 (1932), as set out in the majority opinion, that “[o]ne [party] must assert the validity of his claim and the other must in good faith deny all or part of it.” I also agree with the statements from Demars v. Musser-Sauntry Land Co., 37 Minn. 418, 419, 35 N.W. 1, 2 (1887), that a denial of a claim must not amount to “extortion” or a “mere refusal to pay an undisputed claim.”
The pleadings and affidavits in this case, however, do not lead to such characterizations as the above. In its amended petition plaintiff stated that it agreed with defendants to do certain dirt-moving work for $5,600; that it overran such bid by $1,685, which it credited to defendants on the $5,600 bid; and that it then contracted to do additional work at an hourly rate. *84Plaintiff attached a detailed bill which shows hourly work done between March 8 and 18, 1980, in a total sum of $21,280, and allowing credits. In an affidavit filed in connection with the summary judgment motion, plaintiff’s attorney stated that plaintiff had accepted defendants’ check in the amount of $1,408.25 “as a partial payment,” and admitted that the check had been tendered by defendants in full payment.
In his answer and in his affidavit, defendant Asmussen alleged the plaintiff’s work was unsatisfactory, and incorporated a letter from defendant Asmussen, acting for both defendants, to plaintiff, stating in part:
As I explained, we were not fully paid on our crop share, due to the faulty dirt work. We do not feel that we should have had any additional charges incurred on the original dirt work done in 1979.
Due to the fact that we were short #2025 bushels of corn because of severe slopes hindering the operation of the irrigation equipment we feel that you owe us $4191.75.
You did bid us $5600 to do the water drainage work and agreed to level the slopes as per your original agreement in 1979.
I am enclosing a check for $1408.25 as final settlement of the bill.
In my opinion there is in this case far more than “a mere refusal to pay,” and there is no showing of any “extortion” by defendants. In specific detail, the position of defendants is that plaintiff so performed the work it agreed to do that defendants suffered a loss of 2,025 bushels of corn on account of “faulty dirt work.” Plaintiff admits it overran its first bid by $1,685, but alleges that it did additional work on an hourly basis agreed upon with defendants. Defendants say “au contraire,” and that any additional work was done to correct the work plaintiff had contracted to do in the first place. I therefore cannot agree with the statement in the majority opinion that “[apparently, the parties orally agreed that the additional work would be billed on an hourly basis ...” That is the crux of the dispute.
In my opinion there are numerous “external manifestations” of a dispute which, on examination, shows the undisputed existence of the fact in question — that there is a bona fide *85dispute. Nothing in the record suggests any “mere refusal to pay,” or any “extortion,” but affirmatively shows defendants’ firm position in an ordinary business dispute.
I would affirm the judgment of the trial court in its entirety.
Boslaugh, J., joins in this concurrence and dissent.