Farmers Co-op. Elevator of Cavalier v. Lemier

• Decision Date: 30 December 1982
• Docket Number: No. 10272,CO-OP,10272
• Citation: 328 N.W.2d 833
• Parties: FARMERSELEVATOR OF CAVALIER, Plaintiff and Appellee, v. Lionel LEMIER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 833

328 N.W.2d 833

FARMERS CO-OP ELEVATOR OF CAVALIER, Plaintiff and Appellee, v. Lionel LEMIER, Defendant and Appellant.

Civ. No. 10272.

Supreme Court of North Dakota.

Dec. 30, 1982.

DePuy, Kopperud, Goulet & Hall, Grafton, for defendant and appellant; argued by W.R. Goulet, Jr., Grafton.

Fleming & DuBois, Cavalier, for plaintiff and appellee; argued by Neil W. Fleming, Cavalier.

PAULSON, Justice.

Lionel Lemier appeals from an order denying a motion for a judgment notwithstanding the verdict dated June 9, 1982, and issued by the District Court of Pembina County. We affirm.

Farmers Co-op Elevator, Cavalier, North Dakota [Elevator] is engaged in the business of buying and reselling grain. Lionel Lemier [Lemier] is a farmer who has farmed in the Cavalier area for a number of years. Ray Robinson [Robinson], at the time the contract at issue in this case was entered into, was the manager of the Elevator and had acted in that capacity for at least fourteen years.

Lemier hauled grain to the Elevator during the spring and summer of 1980. On April 15, 1980, Robinson and Lemier entered into an oral agreement whereby Lemier would sell 12,000 bushels of durum to the Elevator at the price of $4 per bushel, with possible discounts of from 15cents to 30cents per bushel, depending upon the grade, weight, and color of the grain. Delivery of the grain was to take place during the month of October 1980. Robinson reduced the oral agreement to writing by preparing a written contract which he then signed and placed in Lemier's file in the Elevator office. The written contract was never signed by Lemier. Robinson, as manager of the Elevator, subsequently sold the 12,000 bushels of grain to a commission firm. Lemier had knowledge of this transaction.

The price of durum increased during the summer of 1980 as did the amount of the discounts; however, the discounts in the instant case were governed by the contract of April 15, 1980. Lemier failed to deliver the durum in October 1980 and, accordingly, Robinson contacted Lemier in November 1980 to determine whether or not he would deliver the grain. Lemier refused to deliver the grain at the price of $4 per bushel.

In November 1980 the commission firm required the Elevator to repurchase the 12,000 bushels of durum at $5.83 per bushel. Robinson then contacted Lemier and informed him that the durum could be repurchased at $1.83 per bushel, but Lemier refused to pay that amount. Thereafter, the Elevator commenced an action against Lemier for breach of an oral contract of sale. Lemier, in his answer, generally denied the allegations of the complaint and, further, counterclaimed for damages. ¹

The case was tried to a jury. At the close of the Elevator's case, Lemier made a motion for a directed verdict which was denied by the district court. The Elevator, at the close of the trial, made a motion for a directed verdict which was also denied by the court. The case was then submitted to the jury for a special verdict on the issue of whether or not an oral contract was formed between the parties. The jury found that an oral contract was formed and returned the special verdict in favor of the Elevator. The trial court incorporated the special verdict into its order, together with the assessment of damages in the sum of $21,960, plus interest, costs, and disbursements.

A post-trial motion for a judgment notwithstanding the verdict was submitted by Lemier to the court and denied by the trial judge. Lemier appeals from the order denying his motion for a judgment notwithstanding the verdict.

Lemier raises the following issues on appeal: (1) Did the Farmers Co-op Elevator, Cavalier, North Dakota, carry its burden of proving that a contract existed with Lionel Lemier; and, (2) Did the court err in denying Lemier's motion for a directed verdict and for a judgment notwithstanding the verdict?

The question of whether or not an oral contract existed between the parties was submitted to the jury for a special verdict. The jury rendered a verdict as follows:

"QUESTION NO. 1: Has Plaintiff, by a preponderance of the evidence, proved that an oral contract was formed between Plaintiff and Defendant?

Answer yes or no. ANSWER yes

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(Note: If your answer is "no" your work is finished. Sign and return to courtroom. If your answer is "yes" then go to Question No. 2.

"QUESTION NO. 2: Has Plaintiff used reasonable efforts to lessen its damages?

Answer yes or no. ANSWER yes"

----

In Powers v. Martinson, 313 N.W.2d 720, 728 (N.D.1981) this court stated:

"Our review of questions of fact is limited to consideration of whether or not there is substantial evidence to sustain the jury verdict. In determining whether or not there is substantial evidence to sustain the verdict, we will not invade the province of the jury to weigh evidence or to determine the credibility of witnesses. In reviewing the evidence, we will view it in the light most favorable to the verdict and if there is substantial evidence to support the verdict, we will not set it aside." [Citation omitted.]

In the instant case, both parties testified as to the nature of a discussion between the parties on April 15, 1980, concerning the sale of 12,000 bushels of number one hard amber durum for a price of $4 per bushel. On direct examination, Robinson testified as follows:

"Q [By Mr. Fleming, plaintiff's counsel] Did you have a conversation with Mr. Lemier while he was hauling wheat on the 15th of April?

"A Yes, we talked different times when he was in there.

"Q On the 15th of April, did you and Mr. Lemier enter into a discussion regarding the sale of number one hard amber durum?

"A Yes, we did.

"Q Would you explain to the jury and the court what transpired in that conversation as near as you can tell?

"A We were talking about the price and I told him $4.00 a bushel and he said he would sell 12,000 bushels at that price with a contract for October delivery.

"Q What did you say?

"A I told him I would write up a contract and he could check later on when he came in.

"Q At that point, was there any question in your mind that Mr. Lemier had sold you the grain?

"A No, that is all that is necessary."

Lemier testified on direct examination as follows:

"Q [By Mr. Goulet, defendant's counsel] I would ask, Mr. Lemier, in this situation, can you just discuss what the conversation was then on April 15th?

"A Okay, I shall.

"Q With Mr. Robinson, if you recall?

"A Yes. We had a conversation on what I was going to plant this spring, etc., and I told him I was going to plant some durum and he said, why don't you future contract some grain. I said, I don't usually like to sell something I don't have. He said to me, don't worry about that. There is 37 percent more durum planted this year than last. There is lots of durum around the country, to fill your deal, so don't worry about it. So eventually then he did sell some grain down in Minneapolis.

"Q Were you aware of that at the time?

"A Was I aware of what?

"Q The fact that he was going to sell the grain in Minneapolis?

"A I was aware. We talked about it and what he was going to do, yes.

"Q Did he indicate to you...