Dakota Grain Co., Inc. v. Ehrmantrout

• Decision Date: 16 June 1993
• Docket Number: No. 920363,920363
• Citation: 502 N.W.2d 234
• Parties: 23 UCC Rep.Serv.2d 402 DAKOTA GRAIN CO., INC., Plaintiff and Appellee, v. Anthony EHRMANTROUT, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 234

502 N.W.2d 234

23 UCC Rep.Serv.2d 402

DAKOTA GRAIN CO., INC., Plaintiff and Appellee, v. Anthony EHRMANTROUT, Defendant and Appellant.

Civ. No. 920363.

Supreme Court of North Dakota.

June 16, 1993.

Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for plaintiff and appellee; argued by Timothy A. Priebe.

Anderson & Anderson, Bismarck, and Halpern Law Office, PC, Glen Ullin, for defendant and appellant; argued by Michael L. Halpern. Appearance by Sonna M. Anderson.

LEVINE, Justice.

Anthony Ehrmantrout appeals from a district court judgment awarding damages to Dakota Grain Company, Inc. (the Elevator) for breach of a grain sale contract. We hold that the trial court correctly concluded that Ehrmantrout breached the contract, but we further hold that the trial court must redetermine consequential damages, after clarifying its findings relevant to that issue. We affirm in part, reverse in part, and remand for a redetermination of consequential damages.

During the Spring of 1989, Ehrmantrout orally agreed to sell the Elevator some of his Lenn variety hard red spring wheat. The Elevator intended to sell this wheat to other farmers for seeding and insists that Ehrmantrout was informed that the wheat would be used as seed. Ehrmantrout claims that he was neither told nor had reason to believe that the Elevator intended to resell his wheat for seed. Ehrmantrout delivered four truck loads of spring wheat to the Elevator in April 1989.

In early May 1989, the Elevator manager asked Ehrmantrout if he would agree to sell more of his spring wheat to the Elevator. Ehrmantrout agreed and on May 9, 1989, he delivered to the Elevator two truck loads of wheat, totalling 629.49 bushels. The Elevator cleaned this wheat and sold about 585 bushels of it to four different farmers for seeding. The farmers planted the seed, but none of the crops matured. It was ultimately determined that the wheat planted by the four farmers was not Lenn spring wheat, but a winter wheat which, by its nature, will not produce a crop when seeded during the spring of the year. The Elevator paid the four farmers a total of $22,201 as damages for selling them winter wheat to seed instead of spring wheat. The Elevator then filed this action for damages against Ehrmantrout, alleging various theories of recovery, including breach of contract, breach of warranty, negligence and fraud.

The parties made this case much more complex and confusing than was necessary by trying the case on mixed principles of tort and contract law. Yet, this is a classic breach of warranty case, resolvable by application of Chapter 41-02, N.D.C.C., our codification of the Article 2--Sales provisions of the Uniform Commercial Code. Despite the lack of clarity in the parties' presentation of their respective legal theories, the trial court's analysis was close to the mark and, in fact, its resolution of the case, except for some ambiguity in its findings regarding consequential damages, is in accord with Chapter 41-02, N.D.C.C.

The trial court concluded that Ehrmantrout breached his oral sale contract with the Elevator by delivering winter wheat instead of Lenn spring wheat. Using comparative fault principles, the court concluded that Ehrmantrout was 51 percent responsible and the Elevator was 49 percent responsible for the consequential damages arising from the sale of the wheat to the four farmers for spring seeding. The trial court entered judgment awarding the Elevator $125.90 in general damages, representing the difference in the value of the spring wheat Ehrmantrout contracted to sell the Elevator and the value of the winter wheat that he actually delivered to the Elevator. In addition, the trial court awarded the Elevator consequential damages of $11,332.51, representing 51 percent of the total damages incurred by the Elevator in its settlement with the four farmers. Ehrmantrout filed a post-trial motion to amend the trial court's findings of fact, conclusions of law and judgment and filed an alternative motion for a new trial. These post-trial motions were denied by the court, and Ehrmantrout appealed.

Ehrmantrout asserts on appeal that the trial court erred by not specifying what act or omission by Ehrmantrout constituted negligent conduct. The parties unnecessarily complicated this case by using negligence terminology to describe Ehrmantrout's breach of his express warranty to deliver Lenn spring wheat. Under the Uniform Commercial Code, a bargain that includes a description of the goods to be sold creates an express warranty that the goods will conform to that description. Section 41-02-30(1)(b), N.D.C.C. The contract is breached when the delivered goods do not conform to the description, irrespective of whether the seller acted negligently or otherwise. Section 41-02-93(1), N.D.C.C. So, the seller's negligence, or lack of negligence, is not relevant to the question of whether the seller breached his or her express warranty to deliver conforming goods. A mere breach of contract does not, by itself, furnish a basis for liability in tort for negligence. Seifert v. Farmers Union Mutual Insurance Company, 497 N.W.2d 694 (N.D.1993). Conduct that constitutes a breach of contract does not subject the actor to an action in tort for negligence, unless the conduct also constitutes a breach of an independent duty that did not arise from the contract. Pioneer Fuels, Inc. v. Montana-Dakota Utilities, 474 N.W.2d 706 (N.D.1991). See also Cooperative Power v. Westinghouse Electric Corporation, 493 N.W.2d 661 (N.D.1992) (to hold a manufacturer liable in tort for economic loss for damage to a machine sold in a commercial transaction, would eliminate the distinction between tort and warranty actions). The Elevator has not alleged that Ehrmantrout breached any duty, apart from the obligation to deliver spring wheat under the contract, upon which to predicate liability in tort for negligence.

We conclude that the question of whether Ehrmantrout was negligent in delivering winter wheat instead of spring wheat is not relevant to the court's ultimate finding that Ehrmantrout breached the contract. Therefore, Ehrmantrout was not prejudiced by the court's failure to specify what conduct in breaching the contract, if any, was the result of negligence, and Ehrmantrout cannot predicate reversible error upon that issue.

Ehrmantrout also asserts that the trial court's findings that Ehrmantrout delivered to the Elevator winter wheat instead of spring wheat and that the wheat purchased by the four farmers was wheat sold to the Elevator by Ehrmantrout are not supported by the evidence. We disagree. A trial court's findings of fact will not be overturned on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P. A finding is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Dakota Bank and Trust Co. of Fargo v. Federal Land Bank of Saint Paul, 437 N.W.2d 841 (N.D.1989). There is evidence in the record that the Elevator, upon receiving the grain delivered by Ehrmantrout on May 9, 1989, cleaned it and placed it in a separate bin and then resold it to the four farmers for seeding. There is also evidence that winter wheat, as distinguished from hard red spring wheat, will not mature when it is seeded in the spring and that the results experienced by the four farmers who planted the wheat Ehrmantrout had sold to the Elevator clearly demonstrate that the farmers were sold and planted winter wheat, rather than spring wheat. There is also evidence that in May 1989, Ehrmantrout had both winter wheat and spring wheat stored on his farm and that the Elevator did not have winter wheat in storage, except for the wheat that was allegedly delivered by Ehrmantrout. We are not convinced that the trial court made a mistake in finding that Ehrmantrout delivered winter wheat to the Elevator or in finding that the wheat delivered by him was ultimately resold to the four farmers as seed. Those findings are not clearly erroneous.

Ehrmantrout also asserts that the trial court erred in awarding consequential damages in this case. The appropriate measure of damages for a breach of warranty is set forth under Section 41-02-93(2) and (3), N.D.C.C. [U.C.C. 2-714(2) and (3) ]:

"2. The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

"3. In a proper case any incidental and consequential damages under the next section may also be recovered."

The trial court awarded general damages to the Elevator of $125.90 based upon a 20 cent per bushel difference in value between the spring wheat for which Ehrmantrout was paid and the winter wheat that he actually delivered (629.49 bushels delivered X $.20 per bushel price difference = $125.90). Section 41-02-93(2), N.D.C.C. Ehrmantrout does not object to this award of general damages.

However, Ehrmantrout does object to the court's award of consequential damages. In awarding...