Joseph Heiting and Sons v. Jacks Bean Co.

• Decision Date: 14 December 1990
• Docket Number: No. 88-774,88-774
• Citation: 236 Neb. 765,463 N.W.2d 817
• Parties: , 13 UCC Rep.Serv.2d 336 JOSEPH HEITING AND SONS, a Partnership, Appellant, v. JACKS BEAN COMPANY, a Colorado Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 817

463 N.W.2d 817

236 Neb. 765, 13 UCC Rep.Serv.2d 336

JOSEPH HEITING AND SONS, a Partnership, Appellant, v. JACKS BEAN COMPANY, a Colorado Corporation, Appellee.

No. 88-774.

Supreme Court of Nebraska.

Dec. 14, 1990.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that no genuine issue exists as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that, as a matter of law, the moving party is entitled to judgment.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, we view the evidence in a light most favorable to the party against whom the judgment is granted and give such party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts: Offers to Buy or Sell. A fundamental concept in contract law is that to create a contract there must be both an offer and an acceptance. There must also be a meeting of the minds or a binding mutual understanding between the parties to the contract.

4. Contracts: Summary Judgment. Summary judgment is not proper if conflicting evidence is presented to show whether a contract existed.

5. Offers to Buy or Sell. The mere statement of the price at which property is being held cannot be understood as an offer to sell.

6. Contracts: Offers to Buy or Sell. Acceptance of an offer may be expressed in a variety of forms. Acceptance may be illustrated by words, conduct, or acquiescence.

7. Contracts: Offers to Buy or Sell. Acceptance of an offer by an alleged act, words, or conduct is determined by a reasonable person standard.

8. Contracts: Offers to Buy or Sell. Acceptance of an offer may also be indicated by the silence and inaction of an offeree.

9. Uniform Commercial Code: Statute of Frauds. As a general rule, exceptions to the provisions of the statute of frauds found in the Uniform Commercial Code cannot be enlarged by usage in the trade.

10. Uniform Commercial Code: Sales: Words and Phrases. Acceptance of goods under Neb.U.C.C. § 2-606(1)(c) (Reissue 1980) occurs when the buyer does any act inconsistent with the seller's ownership.

11. Uniform Commercial Code: Contracts: Sales. When, under an alleged contract of sale, the buyer cannot return the original goods, that may be a factor to consider in determining whether a sale has been made.

12. Uniform Commercial Code: Sales: Vendor and Vendee: Words and Phrases. Delivery by a seller generally occurs when the seller has done everything necessary to put goods completely and unconditionally at the buyer's disposal.

13. Uniform Commercial Code: Contracts: Statute of Frauds. Where the conduct that is relied upon for part performance is consistent with a contract, such conduct may be sufficient to take the contract out of the statute of frauds even though the conduct is not inconsistent with some other arguable possible arrangement between the parties.

14. Uniform Commercial Code: Contracts: Sales: Evidence: Trial. Where the evidence as to receipt and acceptance under the Uniform Commercial Code is not conclusive, the question is one of fact to be resolved by the fact finder.

Peter C. Wegman, of Rembolt Ludtke Parker & Berger, Lincoln, for appellant.

Paul W. Snyder, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, Scottsbluff, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

The plaintiff, Joseph Heiting and Sons (Heiting), has appealed the order of the district court which entered summary judgment in favor of the defendant, Jacks Bean Company (Jacks). Heiting had filed suit for damages for breach of an alleged oral contract for the sale of its beans to Jacks. Heiting assigns as error that the court incorrectly determined that there were no genuine issues of material fact and failed to find that an exception to the statute of frauds provision of Neb.U.C.C. § 2-201 (Cum.Supp.1990) applied to the facts of this case. We reverse and remand for further proceedings.

Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that no genuine issue exists as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that, as a matter of law, the moving party is entitled to judgment. Neb.Rev.Stat. § 25-1332 (Reissue 1989); First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990); Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793 (1990). In reviewing a summary judgment, we view the evidence in a light most favorable to the party against whom the judgment is granted and give such party the benefit of all reasonable inferences deducible from the evidence. Id.

Jacks is a Colorado corporation with headquarters in Holyoke, Colorado. Jacks purchases beans at its warehouse, processes the beans, and eventually sells the beans. Jacks has a procedure in receiving the beans. A grower brings the beans to Jacks' facility in Sheridan County, Nebraska. The manager of the facility, Richard Schneider, takes a 500-gram sample from the load of beans and grades the beans on a scale of 1 to 5 based on the amount of split beans, stems, dirt, and other debris (tare) in the sample. Grade 1 is the highest and grades 4 and 5 are substandard.

If the grade assigned is acceptable to the grower, the beans are dumped into a bin at Jacks' facility and are commingled with beans from other growers. When the bins are full, the beans are transported to Jacks' processing plant, where the beans are processed. The beans are considered stored if the grower and Jacks have not reached an agreement for sale and purchase within 30 days despite the fact that a grower's particular beans may have already been processed. The storage charge to the grower is $0.003 per hundredweight per day.

Schneider receives a daily call from Jacks' headquarters in Holyoke, Colorado, advising Schneider of the prices for the various types of beans to be purchased by Jacks that day. The prices generally remain the same throughout the day, but the prices are subject to change. The daily prices are posted in the grading room at Jacks' facility, published in the Scottsbluff, Nebraska, newspaper, and broadcast over the Alliance, Nebraska, radio station. Ordinarily, the process of calling in and selling the beans previously delivered to Jacks is not in writing.

Joseph Heiting and Sons is a partnership consisting of Joseph Heiting and his sons, Steve and Tim. The partnership is engaged in farming. The partners each have a one-third interest in the partnership; however, Joseph Heiting (Mr. Heiting) does the selling. Heiting delivered its beans to Jacks from September 18 to September 29, 1987. Each load was graded, weighed, and receipted for by delivery of a scale ticket. During that time, Heiting delivered 12 loads of beans for a total of 2,837.75 hundred-pound bags, each assigned grade 1. The beans were commingled at Jacks' facility in Sheridan County with beans from other producers and shipped to Jacks' processing facility.

On September 30, 1987, Mr. Heiting called and told Schneider that he wanted to sell Heiting's beans. The posted price was $19. Mr. Heiting was told by Schneider that he would "call them in." Mr. Heiting construed this to mean that the beans were sold at $19. Mr. Heiting believed Jacks could purchase all the beans Heiting had to sell at the posted price because he was never informed that there was limited buying.

Schneider did not recall if he or Cheryl Johnson, the bookkeeper and receptionist for Jacks, had spoken to Mr. Heiting. Schneider later stated that he had told Mr. Heiting of the limited buying when Mr. Heiting called Jacks to sell the beans.

Mr. Heiting discovered 1 or 2 days after September 30 that Jacks had not purchased the beans. The price had dropped to $18 per bag. Mr. Heiting made no attempt to sell at that price. The beans were sold in March 1988 at a price of $15 per bag. Mr. Heiting was not called back for verification of the purchase.

Although the beans were not purchased by Jacks until March 1988, Heiting received a separate check in 1987 as a freight payment of $0.25 per hundredweight for all beans delivered to Jacks. Schneider testified that the freight payment is due when a load of beans is hauled to Jacks' facility.

Heiting brought this action based on an alleged oral contract between the parties to purchase all the beans stored at Jacks for $19 per bag.

A fundamental concept in contract law is that to create a contract there must be both an offer and an acceptance. There must also be a meeting of the minds or a binding mutual understanding between the parties to the contract. See Woods v. Woods, 177 Neb. 542, 129 N.W.2d 519 (1964). A contract may be written or oral and can be shown by circumstantial evidence. See Woods, supra.

Summary judgment would not be proper if conflicting evidence is presented to show whether a contract existed. See Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207 (8th Cir.1976). When the issue is whether an acceptance of an offer was sufficient to create a contract, the issue is one of fact and summary judgment is not proper. See, Hansen v. Hill, 215 Neb. 573, 340 N.W.2d 8 (1983); Duplex Mfg. Co. v. Atlas Leasing Corp., 184 Neb. 294, 166 N.W.2d 732 (1969); Fay Smith & Associates, Inc. v. Consumers P.P. Dist., 172 Neb. 681, 111 N.W.2d 451 (1961).

Heiting has alleged that the posting of a price was an offer which it accepted. Heiting argues in the alternative that Heiting offered the beans for sale and the offer was accepted. In considering the first alternative it is necessary to look at the case of Nebraska Seed Co. v. Harsh, 98 Neb. 89, 152 N.W. 310 (1915). In Harsh, a letter was sent by Harsh to Nebraska Seed Company indicating that Harsh wanted to sell a...