Bunge Corporation v. Miller, Civ. No. C-73-249.

• Decision Date: 27 February 1974
• Docket Number: Civ. No. C-73-249.
• Citation: 381 F. Supp. 176
• Parties: BUNGE CORPORATION, a New York corporation, Plaintiff, v. Charles MILLER, Defendant.
• Court: U.S. District Court — Western District of Tennessee

381 F. Supp. 176

BUNGE CORPORATION, a New York corporation, Plaintiff, v. Charles MILLER, Defendant.

Civ. No. C-73-249.

United States District Court, W. D. Tennessee, W. D.

February 27, 1974.

John L. Warner, Jr., Union City, Tenn., for plaintiff.

William W. Dunlap, Jr., John H. Harris, Jr., Chandler, Manire, Harris & Shelton, Memphis, Tenn., for defendant.

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

In this cause plaintiff, Bunge Corporation, sues defendant, Charles Miller, a West Tennessee farmer, for breach of contract, alleging that Miller failed to deliver 8,305.68 bushels of the 10,000 bushels of soybeans due under two contracts entered into by Miller and Bunge in August, 1972. The case has been tried to a jury which answered interrogatories submitted to it by the Court. The parties stipulated that the Court should determine any questions of fact which had not been determined by the jury in their answers to the interrogatories.

In early August, 1972, Miller contacted Bunge at Boothspoint, Tennessee (a barge terminal on the Mississippi River) seeking to contract for October-November, 1972, delivery of soybeans to Bunge for $3.30 per bushel and was told that Bunge could not contract at that price at that time, but would do so if and when the market price rose sufficiently. Subsequently, Bunge sent Miller two contracts, one dated August 8 and one dated August 11, each for the purchase by Bunge of 5000 bushels of soybeans at $3.30 per bushel for October-November¹ delivery at Boothspoint. Miller signed the contracts and returned them to Bunge. Pursuant to the contracts Miller delivered 534.39 bushels of soybeans on October 19, 1972 and 610.26 bushels on November 4, 1972 and was paid for them when he requested payment. Miller also delivered 549.67 bushels on January 4, 1973, but was not paid for that delivery. He has filed a counterclaim against Bunge for the amount due him for the January 4 delivery.

A clause in the contracts between Bunge and Miller provides that: "Buyer reserves the right, without further notice to Seller, to cancel, extend time, or to fill here or elsewhere at Buyer's option, any contract not filled within contract time, and any loss resulting therefrom to be paid by Seller." The jury found that the contracts were extended by Bunge on or before November 30, 1972, without notice to Miller and that Miller did not request an extension. The jury also found that there was an understanding between Miller and Carl Jones, Bunge manager at Boothspoint, that, regardless of whether the time for delivery under the contracts was extended, Miller would not be required to pay any greater damages than the damages due as of November 30, 1972 on any unfilled balance of the contracts. The market price on November 30 was $3.61½ per bushel.

On January 22, 1973, Carl Jones sent Miller a letter which stated in part: "As an accommodation to you, and without otherwise affecting your rights and obligations under the contract, we hereby agree to extend the time in which you may deliver the balance due under this contract to February 28, 1973." This was the only extension of the contract by Bunge in writing.

During the fall and winter of 1972 there were severe weather conditions in the form of unusually heavy rains and flooding of the Mississippi, Obion and Forked Deer Rivers in the areas where Miller farmed. On February 20, 1973, Miller told Carl Jones that because of those weather conditions, he would not be able to deliver the balance of the soybeans on the contract. Bunge treated Miller's statement as a repudiation and breach of the contract. The difference between market and contract price on that day was $2.82½ per bushel. The jury found that Miller was unable to deliver 4,150 bushels prior to February 20, 1973 by reason of the weather and conditions resulting therefrom.

We conclude, consistent with Miller's contention, that, under the circumstances here, damages could not be increased by the unilateral extension of the contract by Bunge.

The parol evidence rule T.C.A. § 47-2-202, does not, as Bunge contends, preclude consideration of the understanding between defendant and Carl Jones as to damages. Such parol evidence rule precludes only consideration of evidence of a prior agreement or of a contemporaneous oral agreement which contradicts terms set forth in a writing intended by the parties as a final expression of their agreement with respect to those terms. Such terms, however, may be explained or supplemented by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. The understanding as to damages does not contradict any terms of the contract, for the clause allowing unilateral extension by Bunge without notice says nothing about the measure of damages in the event of an extension and a subsequent failure to complete delivery. Bunge contends, however, that term 13 of the contract which provides: "This confirmation covers Buyer's understanding of the terms of this transaction. Failure to wire Buyer immediately on receipt of this confirmation will be understood as Seller's acceptance of these terms" requires a conclusion that the contract is the complete and exclusive statement of the terms of the agreement. We do not agree. We cannot find, from the terms of the contract or otherwise, that it was intended as a complete and exclusive statement of the agreement. We conclude that this oral understanding may be considered and supports Miller's understanding of the contract with respect to damages. Moreover, Bunge's letter of January 22, 1973 to Miller, after the formation of the contract, concerning the extension supports the interpretation that there would not be an increase as to damages in the event of a unilateral extension. The letter states: "As an accommodation to you and without otherwise affecting your rights and obligations under the contract², we hereby agree to extend the time in which you may deliver the...