Jamestown Terminal Elevator, Inc. v. Hieb, 9198

• Decision Date: 05 November 1976
• Docket Number: No. 9198,9198
• Court: North Dakota Supreme Court
• Parties: 20 UCC Rep.Serv. 617 JAMESTOWN TERMINAL ELEVATOR, INC., Plaintiff-Appellee, v. Archie HIEB, Defendant-Appellant. Civ.

Page 736

246 N.W.2d 736

20 UCC Rep.Serv. 617

JAMESTOWN TERMINAL ELEVATOR, INC., Plaintiff-Appellee, v. Archie HIEB, Defendant-Appellant.

Civ. No. 9198.

Supreme Court of North Dakota.

Nov. 5, 1976.

Syllabus by the Court

1. In determining the sufficiency of the evidence to sustain the verdict of the jury, this court must view the evidence in the light most favorable to the verdict.

2. The Supreme Court's review of the facts is limited to consideration of whether there is substantial evidence to sustain the verdict; if there is, the court is bound by the verdict.

3. A motion for directed verdict is to be denied unless the evidence is such that reasonable men, without weighing the credibility of witnesses or otherwise considering the weight of the evidence, could not disagree upon the conclusion to be reached.

4. A motion for directed verdict should not be granted unless the moving party is entitled to a judgment on the merits as a matter of law. In determining whether the moving party is entitled to a judgment on the merits as a matter of law, the evidence should be evaluated in the light most favorable to the party against whom the motion was made.

5. In a contract for the sale of goods, the absence of an agreement on a specific time for delivery will not cause the contract to fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for computing a reasonable time.

6. The nature, purpose, and circumstances surrounding a transaction, as ascertained from the parties' previous course of dealing and usage of trade, may be used to compute what was a 'reasonable time' for delivery in a specific transaction.

7. Under § 41--01--03, N.D.C.C., promissory estoppel may act as a bar to the raising of the statute of frauds as a defense in oral agreements for the sale of goods.

8. Promissory estoppel may be applied to avoid the statute of frauds' provision regarding oral agreements for the sale of goods if the agreement is first established by competent evidence, where the statute does not render such an agreement void.

9. The basic elements of promissory estoppel that must be met as to the person being estopped are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the other party or persons; and (3) knowledge, actual or constructive, of the real facts. The elements that must be found as to the person claiming the estoppel are: (1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon, of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

10. The determination of a reasonable time to 'cover' following a breach of contract rests in the discretion of the jury and generally will not be interfered with on appeal where there is substantial evidence to sustain the verdict.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for appellant; argued by Gerald W. Jukkala, Jamestown.

MacKenzie & Jungroth, Jamestown, for appellee; argued by James R. Jungroth, Jamestown.

PAULSON, Justice.

This is an appeal by the defendant, Archie Hieb. Hieb appeals from the final judgment of the district court of Stutsman County awarding damages to Jamestown Terminal Elevator, Inc., a corporation (hereinafter Terminal), for breach of a contract to deliver grain; and from the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial. The matter was tried before a jury to whom special verdicts were submitted by the trial judge.

This action arose as a result of several telephone conversations between Hieb and representatives of Terminal on or about July 3, 1973. Terminal alleges that Hieb agreed to sell 10,000 bushels of No. 1 Hard Amber Durum at $2.65 per bushel and to deliver the same 'within a couple weeks'. Terminal also alleges that on the same day that Terminal 'bought' Hieb's grain, the elevator immediately resold 10,000 bushels of durum wheat through Terminal's commission agent in Minneapolis, Minnesota, for delivery on August 31, 1973.

Hieb, on the contrary, alleges that no agreement between the parties was reached on July 3, 1973. He asserts that all that transpired was an oral offer by Terminal to buy 10,000 bushels of durum wheat at $2.65 per bushel, such offer to be accepted by Hieb upon his signing a written contract with Terminal which would specify the amount of grain, the price, and the delivery date.

When Hieb failed to deliver the 10,000 bushels of grain within the following two weeks, Terminal's manager, Donald DeMersseman, contacted Hieb at his farm on July 19, 1973, to determine when delivery of the grain would be forthcoming. Mr. DeMersseman testified that Hieb responded to his question concerning the delivery of the grain by stating that 'I (Mr. DeMersseman) should wait until the price went down'. Hieb denies having given such a response, alleging that he responded to Mr. DeMersseman's question by stating that 'I (Hieb) didn't have any grain for him'.

On August 14, 1973, Terminal, by its attorney, sent Hieb a certified letter demanding delivery of the grain by August 31, 1973. Terminal representatives assert that they always expected Hieb to honor his agreement and deliver the grain by August 31, 1973. When Hieb failed to deliver the grain on August 31, Terminal entered the open market to 'cover (§ 41--02--91, N.D.C.C. (2--712, U.C.C.))' on September 4, 1973, the first market day after August 31, 1973. The open market price on September 4 was $6.75 per bushel, resulting in a $37,500.00 increased cost to Terminal over the July 3, 1973, contract price.

On appeal, it is Hieb's initial contention that the trial court should have granted his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, on the ground that the evidence was insufficient to justify the verdict, in that such evidence did not support the jury's finding that an agreement was reached between the parties. We have recently defined the scope of our review of such a motion, in Waletzko v. Herdegen, 226 N.W.2d 648, 653 (N.D.1975), wherein we stated:

'As to the trial court's denial of Waletzko's motion for judgment notwithstanding the verdict or in the alternative for a new trial, the credibility of the witnesses and the weight to be given their testimony are questions of fact for the jury to determine. In determining the sufficiency of the evidence to sustain the verdict of the jury, we must view the evidence in the light most favorable to the verdict. (Citations omitted.) Our review of the facts is limited to consideration of whether there is substantial evidence to sustain the verdict; if there is, we are bound by the verdict.'

Our perusal of the record indicates that there is substantial evidence to support the jury's finding that Hieb agreed to sell a specified amount of grain to Terminal. The evidence, when viewed from the light most favorable to the verdict, includes: (1) the testimony of both Terminal's manager, Mr. DeMersseman, and Terminal's assistant manager, Mr. Ancel Marsh, concerning the substance of their telephone conversations with Hieb on July 3, 1973; (2) the recording of the transaction in Terminal's business records in Terminal's usual course of business; (3) Terminal's documentation of an immediate reselling of a like amount of durum wheat by Terminal's commission agent in Minneapolis, Minnesota, on July 3, 1973; and (4) the testimony of Solomon Schroeder, a retired farmer, stating that in early July of 1973, Hieb had told him that Hieb had recently sold 10,000 bushels of durum wheat to Terminal at $2.65 per bushel. We must find on the basis of the above that the jury had before it substantial evidence to sustain its verdict. We are therefore bound by the jury's verdict and cannot substitute our judgment for that of the jury.

The second issue raised by Hieb is that the trial court erred in failing to grant his motion for a directed verdict on the ground that as a matter of law a contract could not be found to have existed because an essential element--the delivery date--was not agreed to by the parties. We find no merit in this contention.

Section 41--02--11(3), N.D.C.C. (2--204(3), U.C.C.), provides as follows:

'Formation in general.

'3. Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.'

Further, § 41--02--26(1), N.D.C.C. (2--309(1), U.C.C.), provides:

'Absence of specific time provisions--Notice of termination.--1. The time for shipment or delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a Reasonable time.' (Emphasis added.)

Section 41--01--14(2), N.D.C.C. (1--204(2), U.C.C.), helps to interpret the Code's use of 'reasonable time', stating 'Time--Reasonable time--'Seasonably'.--

'2. What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.'

Finally, § 41--01--15, N.D.C.C. (1--205, U.C.C.), in pertinent part, provides the following guides to establish the 'nature, purpose and circumstances' of an agreement:

'Course of dealing and usage of trade.--1. A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.

'2. A usage...