dissenting.
The majority opinion holds that the jury instructions failed to *672completely and accurately state the law regarding a wrongful termination claim. I respectfully dissent. The jury instructions fully advised the jury regarding the law. The instructions also correctly placed the burden of proof on the defendant for what the defendant denominated in his pleadings as affirmative defenses. The majority opinion would put this burden on the plaintiff.
ELEMENTS OF A WRONGFUL TERMINATION ACTION
I depart from the majority’s conclusion in section IV(l)(b)(i) that the jury instructions omitted one of the elements of the plaintiff’s cause of action for a breach of contract of employment as set out in Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 N.W.2d 529 (1993). In Schuessler, we attempted to clarify an earlier opinión, Stiles v. Skylark Meats, Inc., 231 Neb. 863, 438 N.W.2d 494 (1989). In Schuessler, we focused on the burden of proof placed on both parties, and we restated the elements of a cause- of action for a breach of contract of employment claim. We said, “The employee must initially prove the existence of the contract, its terms and his compliance with them until his discharge, the employer’s breach, and damages.” 243 Neb. at 436, 500 N.W.2d at 538.
Since an employer may lawfully discharge an at-will employee without cause, a plaintiff in an action for breach of a contract of employment has the burden of proving the existence of a contract and proving its terms. Smith v. City of Omaha, 220 Neb. 217, 369 N.W.2d 67 (1985). In Stiles, supra, we said that a plaintiff was required to prove the existence of a contract and that the employer breached that contract by firing him or her for other than good cause. See, also, Overmier v. Parks, 242 Neb. 458, 495 N.W.2d 620 (1993).
Schuessler apparently adds an element to the plaintiffs burden of proof by requiring the plaintiff to prove that he or she complied with the terms-of the-employment contract as part of the plaintiff’s prima facie case. Plaintiffs in other types of breach of contract actions are not required to prove they complied with the terms of the contract in order to prove a prima facie case. Generally, in order to recover on an action for *673a breach of contract, the plaintiff must plead and prove the existence of a promise, its breach, and damages. Krzycki v. Genoa Nat. Bank, 242 Neb. 819, 496 N.W.2d 916 (1993); K.M.H. v. Lutheran Gen. Hosp., 230 Neb. 269, 431 N.W.2d 606 (1988).
In this matter, Cosgriff asserted that if the jury found that an employment contract existed, then Barks was terminated for good cause because he allegedly failed to perform his services for the company in a professional manner, did not give his full efforts to the fundraising campaign, and did not use his best efforts to perform assigned duties. In applying Schuessler to Barks, the majority would require him to prove as part of his prima facie case that he complied with the terms of his alleged contract of employment. Therefore, the majority effectively places the initial burden of proving the absence of good cause on Barks. This violates the majority’s holding which places the burden of production on the employer to come forward with evidence that good cause existed for discharging the employee.
Our statement of the elements of a cause of action for breach of an employment contract in Stiles more accurately states the plaintiff’s prima facie case. By requiring the plaintiff to prove the existence of a contract and that the employer breached that contract by firing him or her for other than good cause, we recognize that an employee could be terminated for reasons other than failure to perform the terms of the employment contract. For example, an employee could be terminated for misconduct or because the employer no longer has an economic need for anyone to do the employee’s job. See, Ballard v. Giltner Pub. Sch., 241 Neb. 970, 492 N.W.2d 855 (1992); Cleasby v. Leo A. Daly Co., 221 Neb. 254, 376 N.W.2d 312 (1985). In both cases, the reasons constitute just cause for breach of the employment contract.
Finally, Schuessler was released some 2 months after this matter went to trial. A trial court is required to render a decision which reflects any change in the applicable law which occurred in the interval between the time the judge made rulings of law and the time judgment is pronounced. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994). Although we stated in Schuessler that we were attempting to clarify the burden of *674proof in breach of employment contract actions, we added an element to the cause of action. I believe the trial court correctly relied on Stiles in stating the law in effect at the time it pronounced judgment. It was not error for the trial court not to anticipate a change in the law. Therefore, no error should be predicated on a ruling of this court subsequent to that judgment.
EFFECT OF FINDING BARKS WAS AN AT-WILL EMPLOYEE
In section IV(l)(b)(ii), the majority concludes that the jury instructions ignored the effect of the jury’s potential determination that Barks was an at-will employee. Jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal. Hamernick v. Essex Dodge Ltd., ante p. 392, 527 N.W.2d 196 (1995); Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 203 (1994).
In this case, when the jury instructions are read as a whole, they correctly advised the jury.
Part I.B of jury instruction No. 2 delineated the elements of an employee’s prima facie claim for wrongful termination. Part I.B reads:
Before the Plaintiff can recover against the Defendant, the Plaintiff must prove, by the greater weight of the evidence, each and all of the following:
1. That the Plaintiff and Defendant entered into a contract of employment for a term of one year;
2. The terms of the contract;
3. That the Defendant wrongfully breached the contract by terminating Plaintiff;
4. That the breach of contract was the proximate cause of the damage to the Plaintiff; and
5. The nature and extent of that damage.
Part I.B of the jury instruction clearly placed the burden of proof on Barks to prove by the greater weight of the evidence that he and Cosgriff entered into a contract of employment for a term of 1 year. Part I.C advised the jury that if Barks had “not *675met this burden of proof, then your verdict must be for the Defendant. On the other hand, if the Plaintiff has met this burden of proof, then you must consider the Defendant’s defense that Plaintiff was terminated for cause.” Therefore, if the jury determined that Barks failed to prove that there was a contract of employment, the jury was required to hold that Barks’ wrongful termination claim failed. The jury would not have reached the language the majority objects to in part II.A of the instruction.
BURDEN OF PROOF WAS ON THE DEFENDANT
Finally, in section IV(l)(b)(iii) the majority holds that the burden of proof remains with the employee at all times, although the burden of production shifts to the employer to produce credible evidence of good cause for termination after the employee establishes a prima facie case. However, we have previously held that the burden of proof is on the employer when the breach of contract is asserted as an affirmative defense. Ballard v. Giltner Pub. Sch., 241 Neb. 970, 492 N.W.2d 855 (1992). In its answer, Cosgriff asserted as an affirmative defense that Barks had breached his employment contract.
In Ballard, a school district terminated the plaintiff from her position as assistant cook due to alleged .work-related misconduct. The parties had entered into a written employment contract which stated that the plaintiff’s employment would continue as long as she rendered satisfactory service. The plaintiff’s employment was terminated after she called the school principal a “dumb bastard” at the conclusion of a discussion concerning a discipline matter involving her son, a student at the school. The school district asserted that the plaintiff’s termination was justified. We said:
Breach of contract is a contractual party’s failure, without legal excuse, to perform a promissory obligation which forms the whole or part of a contract. ... As an affirmative defense, breach of contract must be pleaded and proved by the party having the burden of proof for the defense.
(Citations omitted.) 241 Neb. at 976, 492 N.W.2d at 858. See, *676also, Nebraska Pub. Emp. v. City of Omaha, 244 Neb. 328, 506 N.W.2d 686 (1993).
Under Ballard’s contract with the school district, her employment could validly be terminated if she failed to render satisfactory service as a cook. The school district failed to adduce any evidence indicating that Ballard had not provided satisfactory service as a cook; rather, the evidence indicated her termination was based solely on a comment she made during a parent-principal conference. Accordingly, the school district’s affirmative defense failed.
In Cleasby v. Leo A. Daly Co., 221 Neb. 254, 376 N.W.2d 312 (1985), the plaintiff brought suit for a breach of a contract for personal services. The defendant asserted business necessity as an affirmative defense justifying its breach of the contract. In Cleasby, the burden of proof was upon the defendant employer.
In this matter, Cosgriff asserted as an affirmative defense Barks’ alleged failure to perform under the employment contract. As it was an affirmative defense, the burden of proof was properly on the defendant. Ordinarily, this court disposes of a case on appeal on the theory on which it was presented in the trial court. Peterson v. Don Peterson & Assoc. Ins. Agency, 234 Neb. 651, 452 N.W.2d 517 (1990); First West Side Bank v. Hiddleston, 225 Neb. 563, 407 N.W.2d 170 (1987). Accordingly, I would affirm the trial court’s jury instructions placing the burden of proof on Cosgriff.
CONCLUSION
Cosgriff failed to object to the jury instructions at trial. Cosgriff’s defenses were presented to the trial court as affirmative defenses. Although the jury instructions could have been more artfully drafted, Cosgriff’s failure to timely object and his characterization of his defenses as affirmative defenses waived his right to assert prejudicial error on appeal. The trial court’s use of such jury instructions should not constitute plain error, and I would affirm the district court’s holding.