Farmers Elevator Co. v. David
| Decision Date | 07 October 1975 |
| Docket Number | No. 9094,9094 |
| Citation | 234 N.W.2d 26 |
| Parties | FARMERS ELEVATOR COMPANY, Plaintiff, Appellant and Cross-Appellee, v. Jerry DAVID, Defendant, Appellee and Cross-Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Time is of the essence of a contract if it is provided expressly by the terms of the contract or if such was the intention of the parties as disclosed thereby. Section 9--07--23, N.D.C.C.
2. Summary judgment shall be granted only if, after taking the view of the evidence most favorable to the party against whom the summary judgment is sought, it appears that there is no genuine issue as to any material fact and that the party seeking the summary judgment is entitled to it as a matter of law. Rule 56, N.D.R.Civ.P.
3. A party moving for summary judgment in an action or contract has the burden of establishing that there is no genuine issue as to any material fact or as to inferences reasonably deducible therefrom.
4. Unless intent is manifest from the face of a contract that time is of the essence of the contract, it is a question for the trier of fact, and summary judgment should not be granted if reasonable men, by using customary and normal processes of reasoning, could differ on the issue.
5. In an action for malicious prosecution, whether malice in instituting the original action existed is an issue of fact that may be adjudicated upon motion for summary judgment if there is no genuine issue as to the facts relative thereto or the inferences reasonably deducible therefrom.
Neil B. Dieterich, Minneapolis, Minn., and Johnson, Milloy, Eckert & Johnson, Wahpeton, for plaintiff, appellant and cross-appellee; argued by Mr. Dieterich.
Bayard Lewis, Wahpeton, for defendant, appellee and cross-appellant.
In this case, Farmers Elevator Company, a North Dakota cooperative association corporation, appeals from a summary judgment dismissing its complaint, and the defendant, Jerry David, cross-appeals from the summary judgment dismissing his counterclaim.
The complaint asserts that on or about December 18, 1972, David agreed to sell to the elevator company 15,000 bushels of number 2 yellow corn at $1.36 per bushel to be delivered in June of 1973; that on or about August 17, 1973, the elevator company called for delivery of said corn and that David refused to deliver the corn and repudiated the contract; that because of the repudiation and breach of contract, David is indebted to the elevator company to the extent of $1.16 per bushel.
David's answer and counterclaim generally denies the allegations of the complaint; denies the existence of any contract; denies the breach of any contract; and asserts that if any contract existed between the parties, it was breached by the elevator company and not David.
In his counterclaim, David asserts that the action was brought against him for purposes of harassment with knowledge that the elevator company had no legitimate cause of action against him.
He further asserts that by this malicious act, he has been damaged in the sum of not less than $10,000 and prays for judgment accordingly.
The elevator company filed a reply to the counterclaim denying each and every allegation thereof.
This case was noted for jury trial, and in fact, the counterclaim demanded a jury trial but prior to trial time, David moved for summary judgment of dismissal on the grounds that the pleadings, depositions, and admissions on file disclosed that there was no genuine issue as to any material fact and that he was entitled to a summary judgment of dismissal of the complaint as a matter of law.
In his oral statement granting the motion, the trial court concluded that there was no contract and that, if there was a contract, it was breached because time was of the essence of the contract.
Thereafter, the elevator company moved for a summary judgment of dismissal on the grounds that the facts did not support a claim based upon malicious prosecution. The court granted that motion also. It is from the summary judgments dismissing the complaint and the counterclaim that the parties appeal.
We shall first consider the appeal from the dismissal of the complaint.
The first issue raised by the elevator company is whether there is a genuine issue as to the validity of the contract. We believe that the first issue has been resolved through counsel's statement during oral argument, that he was waiving the defense of the statute of frauds for the reason that he had failed to assert the statute of frauds as an affirmative defense pursuant to Rule 8(c) of the North Dakota Rules of Civil Procedure and for the further reason that he was relying upon the written memorandum as proof of the fact that time was of the essence of the contract.
David states the second issue to be whether there is a genuine issue as to whether the elevator company's failure to take delivery upon David's offer to deliver in early June, 1973, excused David from performing. The pertinent part of Rule 56(c) of the North Dakota Rules of Civil Procedure reads:
'Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'
The elevator company asserts that in resolving issue number 2, we must determine whether time was of the essence of the contract.
Pertinent is Section 9--07--23, N.D.C.C., which reads:
'Time is of the essence of a contract if it is provided expressly by the terms of the contract or if such was the intention of the parties as disclosed thereby.' § 9--07--23, N.D.C.C.
David contends that the written memorandum, which was executed by an employee of the elevator company and written in his handwriting shortly after the oral contract was entered into, discloses that time is of the essence. He directs our attention to the words 'June delivery.'
The memo follows:
'GRAIN CONTRACT
'12--18--72
'This is to Certify, That I hereby agree to sell to Farmers Elev. Co., and to deliver the same at their elevator at Wyndmere on or before June 30, 1973, the following described grain 15,000 bu. corn at 1.36 basis 2 y c 54 #15 moist (June delivery).
'Per phone Jerry David
'By Sid Mauch'
(Underlining indicates handwritten material.)
In Rice v. Chrysler Motors Corp., 198 N.W.2d 247 (N.D.1972), this court said:
Rice v. Chrysler Motors Corp., 198 N.W.2d 247 (N.D.1972).
Considering the evidence in the light most favorable to the party against whom the motion for summary judgment was made, we believe that it is gleanable from the record which includes affidavits and depositions, that on the 18th day of December, 1972, David, through a telephone conversation with Sid Mauch, an employee of the elevator company, agreed to sell 15,000 bushels of corn at $1.36 per bushel for June delivery during the year 1973, and that Sid Mauch was authorized to contract for the elevator company and did contract to buy said corn at the quoted price for June delivery; that on that date or shortly before that as a result of conversations with Harley Bruun, the elevator manager, and David, Bruun sold a similar amount of corn for June delivery; that shortly thereafter, Sid Mauch on behalf of the elevator company, delivered to David a memorandum of the oral agreement containing similar terms; that during the middle of June, 1973, David attempted to secure permission to deliver the corn to the elevator company but was informed by the manager that he could not take the corn because he did not have room because of the shortage of boxcars for shipment at that time; that there had been a shortage of boxcars for some time; that on the 17th day of August, 1973, the manager of the elevator company telephoned David and informed him that he could now accept delivery of the corn to which David answered that he did not believe he owed the elevator any corn; that in preparing for the harvest of 1973, David had to move about 18 truck loads of oats from certain facilities on his farm to other facilities on his farm because of the elevator company's failure to accept delivery during June of 1973, and that the market price of corn in August, 1973, exceeded the contract price.
We think that under these circumstances there was a genuine issue as to a number of material facts. The material facts involve such questions as whether time was of the essence of the contract, whether the delay in accepting the corn was unreasonable, and whether the damages resulting from the delay prevented a substantial compliance with the contract.
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