Leonard v. American Walnut Co., Inc.

• Decision Date: 02 December 1980
• Docket Number: No. WD,WD
• Citation: Leonard v. American Walnut Co., Inc., 609 S.W.2d 452 (Mo. App. 1980)
• Parties: 30 UCC Rep.Serv. 25 Charles W. LEONARD, Respondent, v. AMERICAN WALNUT COMPANY, INC., Appellant. 31027.
• Court: Missouri Court of Appeals

Page 452

609 S.W.2d 452

30 UCC Rep.Serv. 25

Charles W. LEONARD, Respondent, v. AMERICAN WALNUT COMPANY, INC., Appellant.

No. WD 31027.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

Dale Reesman, Boonville, for appellant.

James E. Conway, Boonville, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

Charles W. Leonard brought suit for damages incurred when American Walnut Company breached its contract to purchase standing walnut timber on Leonard's farm. After a bench trial, judgment was entered for Leonard in the sum of $3347.00 and American Walnut Company appeals.

The principal point of error asserted on this appeal under four alternative but interrelated contentions concerns the theory and measure of damages for breach of the purchase contract. Additionally, American argues that its failure to perform was justified in response to the seller's breach when the quantity and identity of the trees sold was changed after the contract was made. Because the facts bear importantly on these issues, the evidence must be recounted in some detail.

Leonard owns more than 1,900 acres of land in Cooper County including acreage in timber. In the fall of 1975, he selected and offered for sale 143 walnut trees which were to be "culled" because they were dying or were crowding other trees. The terms of the offering were that removal of the trees was to be by the buyer. Paper tags attached by Leonard to the trees identified those to be sold. An invitation was extended to bidders with bids to be opened and the sale consummated at the Bunceton State Bank December 30, 1975.

A representative of American inspected the trees in company with Leonard's son and submitted a bid. At the bid opening December 30, American was the high bidder at $8471.00, but the bid failed to conform to the offering because the bid specified a purchase of 163 trees rather than the 143 offered. The apparent successful bidder was Ace Log and Lumber at $5124.80 for the correct quantity of trees.

American's representatives, Horton and Sartin, were present at the bid opening. Their attention was called to the quantitative variance in the number of trees. Horton thereupon announced that American would let its bid stand and accept the lesser number of trees without revision in the bid price. A contract was signed and American's draft for $8471.00 was delivered to Leonard.

The same day, Horton and Sartin returned to the Leonard farm for the purpose of spraying paint markings on the trees purchased. Marking was not completed that afternoon. Horton and Sartin returned the following morning but, according to Sartin's testimony, they discovered that tags were missing from some trees which had been included in the purchase and other tags had been moved to trees of lesser quality. On this account, they proceeded at once to the office of American where payment on the draft to Leonard was stopped.

No complaint was made to Leonard as to the alleged substitution of different trees and it was only when Leonard was notified by his bank of the dishonored draft that he learned the sale had aborted. Discussion thereafter led to no solution and Leonard commenced this action March 2, 1976. As damages, Leonard sought to recover from American the difference between the price agreed to be paid by American and the then fair market value of the trees as evidenced by the next lower bid at the sale, that of Ace Log and Lumber.

Early in 1977, before trial of this case but more than one year after American's bid for the trees was made, Leonard again offered walnut trees for sale. This subsequent offering was of 293 trees, many of superior quality to those which American had contracted to purchase. Some, but not all, of the trees in the earlier sale were included with other trees in the second offering. The price realized by Leonard from this sale amounted to $26,015.00. Absence of definite identification of trees in the first and second offerings and the lump sum nature of the sale prices preclude ascertaining comparative prices for trees included in both sale transactions.

Considering, first, American's contention that changes in markings of the trees by Leonard or his agents justified rescission of the contract by American, the evidence on the subject was sharply conflicting. The trial court, sitting as a fact finder, was required to decide if American had been misled as to the number of trees, if the identification tags had been changed, or if rescission of the contract was simply the result of a later decision that the bid had exceeded the value of the goods. By its findings and judgment, the court chose to believe Leonard's witnesses and rejected American's version of events.

Credibility of witnesses is to be determined by the fact finder and on conflicting testimony, the result reached in the trial court is entitled to deference. Lytle v. Page, 591 S.W.2d 421 (Mo.App.1979). Here, the trial court's finding that American had bid to purchase 143 trees and had failed to make payment without any justified complaint as to the quantity or identity of the trees was supported by substantial evidence. In a court-tried case, the appellate court may...