Carson v. Mulnix
| Decision Date | 22 March 1978 |
| Docket Number | No. 60053,60053 |
| Citation | 263 N.W.2d 701 |
| Parties | 23 UCC Rep.Serv. 1162 Joseph CARSON, d/b/a Carson Grain, Troy Mills, Iowa, Appellee, v. Roxie MULNIX, Jr., Appellant. |
| Court | Iowa Supreme Court |
David A. Elderkin, of Wadsworth, Elderkin, Pirnie & Von Lackum, Cedar Rapids, for appellant.
Kenneth L. Moon, Cedar Rapids, for appellee.
Considered by MOORE, C. J., and MASON, RAWLINGS, LeGRAND, and REYNOLDSON, JJ.
This is an appeal by defendant, Roxie Mulnix, Jr., from an adverse judgment rendered in a law action tried to the court. March 5, 1974, plaintiff, Joseph Carson, d/b/a Carson Grain, Troy Mills, Iowa, instituted an action in the Linn District Court seeking relief on the theory defendant had breached an oral contract made January 22, 1973, for the delivery by the end of 1973 of 10,000 bushels of corn at $1.34 per bushel.
Plaintiff alleged that in reliance on the contract he had sold the grain contracted for for delivery on or before January 1, 1974; defendant delivered only 2,709.11 bushels of corn and was paid $3,431.86 therefor but refused to deliver the remainder of the corn; and the price of corn on December 31, 1973, was $2.50 per bushel. Plaintiff prayed for damages in the amount of $8,457.43 (December 31, 1973, market price minus the January 22, 1973, market price times the undelivered bushels).
In answer defendant denied he was to deliver the corn and alleged plaintiff was to pick up the corn at defendant's farm no later than two or three weeks after the date of the contract.
After trial to the court in this matter, the court found for plaintiff and awarded him $8,165.79 plus interest from January 1, 1974. The trial court in its findings of fact noted the parties disputed the time for delivery under the contract but concluded "time was not of the essence." The court explained its use of this phrase meant the performance in full by one promisor was not a condition of the duty of the other promisor to render his return performance. The court found defendant was under a contractual duty to perform within a reasonable period of time and plaintiff was under a similar duty to assist his promised performance by hauling the corn in the agreed time and manner.
At trial plaintiff testified he expected to receive the corn whenever it was shelled but that he gave defendant until December 31 because that was the date upon which he had to conclude his contracts with the processors to whom he sold corn. Defendant testified he expected the corn to be picked up within a week or week and one half from the time the contract was made.
The court found 2709.11 bushels of corn were sold and paid for under the contract prior to March 1, 1973. The parties did not dispute this finding. They agreed plaintiff had picked up two loads at defendant's farm and defendant had hauled in six other loads. Defendant was paid after the corn was measured and appropriate discounts were given and penalties were assessed because of the transportation of the corn and its condition. Plaintiff testified he was told by defendant the remaining corn had to be shelled.
The court determined the agreement called for the sale of shelled corn and the obligation for shelling fell upon defendant. At trial, plaintiff testified it was defendant's duty to shell the corn. Defendant stated no agreement had been reached on this matter and he maintained plaintiff had shelled corn for him prior to the time of the present contract. Plaintiff agreed he had previously shelled corn but at the time of contracting here he had no sheller.
The court concluded defendant " * * * at all times material, had sufficient corn at his disposal to completely perform the contract but willfully failed to do so even after demand was made by Plaintiff for that portion of the contract goods which remained undelivered."
At trial, the parties agreed the corn defendant was to sell had been picked and stored before the contract was made. They disagreed as to how much of it was shelled or unshelled and as to whether the corn was available to plaintiff any time he chose to pick it up.
Plaintiff testified he had driven to defendant's farm and from the driveway had observed corn on the cob in defendant's crib. He explained he knew from the type of crib it held at least 5,000 bushels and that it was full. Later he stated he was not sure the crib was full because he had not climbed to the top.
Defendant agreed he had unshelled corn in the crib but explained it was only half full. He stated he had 6,500 bushels of shelled corn in the drying bin behind the crib.
Plaintiff had observed the drying bin but had noted an Agricultural Stabilization and Conservation Committee seal on it. He stated it was his usual practice to have the seller of the corn arrange to have the Committee people come out and remove the seal when the corn was sold.
Defendant testified plaintiff had agreed to handle the removal of the seal and plaintiff had arranged a removal on the sale of some beans prior to the date of the making of the contract herein. Neither party arranged for the seal to be removed so the other party could perform its duty under the contract.
The court found plaintiff was, at all times material, ready, willing and able to transport the corn from defendant's farm to plaintiff's place of business. It stated plaintiff only needed to show transportation was generally available to defendant if defendant wished to avail himself of it. It concluded plaintiff did not need to prove he had sent his trucks to defendant's farm to pick up the remaining corn. It specifically determined defendant's failure to deliver the corn was not caused by any failure on plaintiff's part to provide vehicles for transporting the corn.
This finding was apparently in response to the parties' pleadings. In his petition plaintiff had alleged he was ready, willing and able to perform the contract in all respects. In his answer defendant had made a general denial to this allegation.
After trial defendant made several post-trial motions which were all denied or overruled. He does not appeal from these decisions but instead appeals from the final judgment and every order and ruling inherent therein.
The issues stated by the parties in their written briefs and arguments present the following questions for review:
1. Must a party to a contract always plead and prove tender of payment under Iowa's enactment of the Uniform Commercial Code, section 554.2511(1)?
2. Did the trial court err in finding there was sufficient evidence to support its award of damages?
I. Defendant contends there was insufficient evidence to support an award of damages because plaintiff produced no evidence at trial that he tendered or even thought of tendering the remaining contract price in order to secure the remaining corn. In effect, he argues plaintiff could not recover any damages unless he first proved at trial he had tendered the remaining contract price.
Plaintiff maintains this issue should not be considered on appeal because it was not raised in any manner in the trial court.
In support of his contention defendant points out section 554.2511(1), The Code, provides as follows:
"Unless otherwise agreed tender of payment is a condition to the seller's duty to tender and complete any delivery."
As further support he draws attention to Wire v. Foster, 62 Iowa 114, 116, 17 N.W. 174, 175, wherein the following statement appears:
" * * * Before the plaintiff could maintain an action for the corn, or rather before he was entitled to damages because of its non-delivery, it was incumbent on him to tender the contract price and demand the corn."
In regard to defendant's contention we point out section 554.2208(1), The Code, provides as follows:
"Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement."
There is substantial evidence in the record that the present contract involved repeated occasions for performance by plaintiff. The only sale under this contract involved eight loads of corn received by plaintiff. The procedure followed with respect to these deliveries was for the corn to be measured and checked for quality at plaintiff's place of business prior to payment. The corn involved in this sale of 2709.11 bushels, not quite 30 percent of the entire amount of corn contracted for, was not paid at the rate of $1.34 a bushel but instead was paid at rates which took into account the fact defendant transported six of the eight loads and the fact the corn was not in perfect condition. These deliveries were handled without objection by defendant to the fact plaintiff did not tender payment prior to delivery.
The course of performance by the parties as shown in this record would justify a finding the parties agreed tender of payment by the buyer prior to delivery was not a condition precedent to the seller's duty to tender and complete any delivery.
It was alleged in paragraph 4 of the petition "that the plaintiff was ready, willing and able to perform said contract in all respects." Defendant in response denied this allegation generally. In its judgment the trial court found "plaintiff at all times material was ready, willing and able to transport said grain as it agreed to do."
The following pertinent comments are found in Annot., 94 A.L.R.2d 1215, 1217:
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...Evidence is relevant if it renders the existence of a fact more probable or less probable with it than without it. Carson v. Mulnix, 263 N.W.2d 701, 706 (1978). The basic test of relevancy is the question whether the challenged evidence makes the desired inference more probable than it woul......
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