Bartlett & Co., Grain v. Curry

• Decision Date: 29 April 1977
• Docket Number: No. 48188,48188
• Citation: 563 P.2d 1096,1 Kan.App.2d 242
• Parties: BARTLETT AND COMPANY, GRAIN, Appellant, v. E. O. CURRY, Appellee.
• Court: Kansas Court of Appeals

Page 1096

563 P.2d 1096

1 Kan.App.2d 242

BARTLETT AND COMPANY, GRAIN, Appellant, v. E. O. CURRY, Appellee.

No. 48188.

Court of Appeals of Kansas.

April 29, 1977.

Syllabus by the Court

1. Generally a contract which specifies the period of its duration terminates on the expiration of such period.

2. A party to a contract connot prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition.

3. The existence and scope of a usage of trade are to be proved as facts.

4. In an action by a grain company against a farmer for breach of contract for the sale of wheat, it is held, the evidence sufficiently supported the trial court's findings and no error appears in its conclusions and judgment.

Michael W. Lerner, of Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., and Sam. W. G. Lowe, of Lowe & Willoughby, Colby, for appellant.

Charles A. Sparks, Jr., of Sparks, Foust & Vignery, and J. Ronald Vignery, Goodland, for appellee.

Before HARMAN, C. J., and ABBOTT and PARKS, JJ.

HARMAN, Chief Judge:

This is an action by a grain company against a farmer for breach of contract for the sale of 60,000 bushels of wheat. Damages were sought in the sum of $74,816.24 for 26,621 bushels not delivered. In trial to the court the farmer prevailed and this appeal ensued.

Many of the facts in the case were not in dispute-a few were. Plaintiff Bartlett and Company, Grain, buys and sells grain. Defendant E. O. Curry is a wheat farmer. On November 26, 1972, these parties entered into two written agreements. Under the first, which is not the subject of this lawsuit, plaintiff agreed to buy and defendant agreed to sell 4,500 bushels of wheat at $1.98 per bushel, delivery to be at plaintiff's elevator at Levant, Kansas. Date of delivery was specified as 'December'. Under the other contract, which is the subject of this action, plaintiff agreed to buy and defendant agreed to sell 60,000 bushels of wheat at plaintiff's Levant elevator at a price of $2.02. This contract called for delivery in 'Mar.'. A notation on it stated: 'Will start delivery in January and February. Will pay storage on early deliver.' A printed clause in the contract provided: 'If for any reason the total number of bushels is not delivered, the seller agrees to pay the buyer the full market difference on any part not delivered'.

Defendant and plaintiff's elevator manager agreed that, because of bad weather, deliveries under the 4,500 bushel contract need not be made in December, 1972, and defendant could commence deliveries when it was possible for him to do so. He started deliveries on this contract in January, 1973, and completed them February 12, 1973. He made deliveries under the 60,000 bushel contract on February 12, 15 and 21 and on March 2, 6, 7, 12, 13, 15 and 16, 1973. These deliveries totaled 16,312 bushels. Plaintiff's elevator manager and defendant testified that after defendant commenced he hauled wheat whenever the elevator would take the wheat. Defendant asserts he was unable to deliver the remainder of the wheat because plaintiff made it impossible to do so. Plaintiff's elevator was shut down on several occasions in February and March and could not take wheat because of a boxcar shortage. Based upon a summary of scale tickets he had received defendant testified that out of thirty-three hauling days between February 8, and March 16, 1973, he was not allowed to haul at all for fifteen days, excluding Sundays. For seven days he was allowed only one or two loads. For eight days, three to seven loads, and for three days, eight to twelve loads were allowed. During February and March defendant and his son had trucks and wheat available so that 3,000 to 3,500 bushels per day could have been delivered.

Plaintiff's elevator manager testified that on March 16 defendant stated he would like to collect the full amount from the government for wheat stored on his farm; government storage payments ended April 30 and to permit defendant to make such collection he agreed that defendant could wait until after May 1 to resume deliveries under the contract. Defendant's testimony was that he never tendered any wheat on the contract after March 17, 1973; that on March 17 the elevator was filled and he was again not allowed to haul; that he asked the manager, 'What now?' and was given no answer; further 'I'd let the wheat go till the government loan run out and then I'd haul a little more wheat'; he would deliver some more wheat because he needed the money; that nobody mentioned the contract at that time. Defendant asked the manager about wheat bought and sold on the March option (delivery in March) and was told the wheat had to be in Kansas City by March 20 which was the time that option went off the trading board. The price of wheat on March 21, 1973, was $1.80, or 22cents below the contract price.

Defendant did deliver seventy-three loads of wheat to plaintiff's elevator during May, totaling 18,067 bushels. Defendant's son took these in at various times in May, the last date being May 21, 1973. Seventy-one of the seventy-three scale tickets delivered to the son contained the abbreviation for the word 'contract' upon them. Ledger sheets for these loads were delivered to defendant which indicated the contract price of $2.02. During May, 1973, the market price was 'significantly higher'. After his last delivery defendant was paid at the contract rate for the entire amount of wheat delivered in May.

So far as defendant was concerned nothing further happened until he was questioned September 14, 1973, by a supervisor for plaintiff as to when he would deliver more wheat. Defendant stated he had no intention of making more wheat deliveries under the contract. Plaintiff served formal demand letters on defendant September 17, 1973. The market price of wheat on the Kansas City board of trade exchange was then around $5.22. Plaintiff's vice-president testified plaintiff did 'buy-in' approximately 25,000 bushels of wheat on the morning of September 18, 1973, to cover wheat not delivered by defendant.

Other evidence will be stated in connection with the parties' contentions.

The trial court made the following findings and conclusions:

'FINDINGS OF FACT

'(1, 2 and 3 relate to the execution of the contract).

'4. The contract itself stated: 'Date of Delivery Mar.', which term is indefinite and incomplete as to which day exactly delivery was due; Defendant claims March 17th, and Plaintiff claims March 31. The Court finds March 17th the day of the Market futures closing, but finds it immaterial in this case.

'5. That the actual agreement between the parties was that Defendant was to deliver 60,000 bushels of wheat to Plaintiff before the end of March of 1973.

'6. That said 60,000 bushels were not delivered to Plaintiff by Defendant in March 1973.

'7. That Defendant was cut off from delivering wheat to Plaintiff by Plaintiff's own actions, between February 12, 1973, and March 16, 1973, as follows:

'a. Defendant was not allowed by Plaintiff to haul wheat on February 13 14, 16, 17, 19, 20, 23, 24, 26, 28, March 1, 8, 9, 10, 14;

'b. Defendant was allowed to only haul 1 or 2 loads on February 22, 27, March 3, 5, 13, 16;

'c. Defendant was allowed to only haul between 3 to 7 loads on February 12, March 2, 7, 15.

'8. Plaintiff, on occasion took 'cash wheat' and turned away Defendant's 'contract wheat.'

'9. That Defendant was capable of hauling 12 to 14 loads a day, and could have met the terms of the contract if he had not been shut down by Plaintiff, as found above.

'10. That Defendant's non-performance was excusable by the actions of Plaintiff, which prevented Defendant from full performance.

'11. In March 1973, the contract terminated by its own terms.

'12. That on April 1, 1973, there was no valid contract entered into extending the contract in question.

'13. On March 17, 1973, Defendant stopped hauling wheat and Plaintiff was, or should have been, aware on that date that Defendant had breached the contract by not delivering 60,000 bushels of wheat.

'14. Defendant voluntarily hauled additional wheat in May, for the purpose of obtaining needed storage space on his farm and needed money.

'15. The March 1973, delivery date was made a term of the contract for the convenience of both parties.

'16. Plaintiff had the duty to receive Defendant's wheat at any time during the life of the contract. No legal excuse for the failure of the Plaintiff was shown, and the Court finds there was none.

'CONCLUSIONS OF LAW

'1. Since the Plaintiff was the party privileged to set down in writing the terms of the contract between the parties, said contract should be strictly construed against the Plaintiff and liberally toward the Defendant.

'2. Plaintiff having prevented the Defendant from performing under a contract, cannot then avail himself of the nonperformance which he himself has brought about.

'3. A contract which specifies a period of its duration, terminates on the expiration of such period.

'4. Judgment is hereby entered for the Defendant herein.'

Our consideration of plaintiff's numerous points on appeal will be limited to those deemed determinative. Plaintiff complains the court erroneously concluded it had the duty to receive defendant's wheat at any time during the life of the contract. The argument is, it was unreasonable to construe the contract so as to require plaintiff at its country elevator to receive 60,000 bushels of wheat, or any major portion thereof, on any single day. This is not the fair import of the challenged conclusion. Defendant should not have had to anticipate that his deliveries would be shut off as they were after he commenced hauling in February. His testimony was that he could have hauled twelve or fourteen loads or 3,000 to 3,500 bushels of wheat per day when he and his son had time, trucks and wheat available during the period. It is no answer to argue defendant should have...