Nelson v. Glasoe

• Decision Date: 24 June 1975
• Docket Number: No. 9091,9091
• Citation: 231 N.W.2d 766
• Parties: Leonard P. NELSON and Mathilda Nelson, copartners, d/b/a Nelson Grain Company, Plaintiffs and Appellees, v. Otis GLASOE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 766

231 N.W.2d 766

Leonard P. NELSON and Mathilda Nelson, copartners, d/b/a

Nelson Grain Company, Plaintiffs and Appellees, v. Otis GLASOE, Defendant and Appellant.

Civ. No. 9091.

Supreme Court of North Dakota.

June 24, 1975.

Syllabus by the Court

1. For reasons stated in the opinion, it is held that the trial court was within its discretion in finding as facts that a conversation between the parties meant that the defendant would have adequate storage for his new crop; that the parties did not regard time as of the essence of the contract; that the defendant was not prejudiced by a call for delivery 6 days after the date fixed by the contract; and that the seller is estopped to claim a breach of contract by the buyer in failing to call for delivery on or prior to the date fixed by contract.

2. 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. N.D.C.C. § 9--07--23.

3. A contract provision that time is of the essence can be waived.

4. Either an executed oral modification or estoppel is sufficient to remove the bar of the statute of frauds' prohibition of oral modification of written contracts.

Bjella & Jestrab, Williston, for plaintiffs and appellees, argued by Frank F. Jestrab, Williston.

McIntee & Whisenand, Williston, for defendant and appellant, argued by Frederick E. Whisenand, Jr., Williston.

VOGEL, Judge.

This is an appeal from a judgment granting to the plaintiff grain elevator operator (buyer) liquidated damages for nondelivery of grain under a written contract with the defendant farmer (seller).

The contract was executed and dated December 7, 1972. It called for the delivery of 9,000 bushels of spring wheat between April 1, 1973, and June 30, 1973, with the exact delivery date to be selected by the buyer, with at least two days' notice to be given to the seller. It further provided: North Dakota were generally full and railroad at delivery point are for any reason unable to receive said grain on the final delivery date above specified, said date may be extended, at Buyer's option, date may be extended, at Buyer's option, for not more than sixty (60) days.'

The 60-day extension expired August 29, 1973. The buyer demanded delivery on September 4, 1973, and the seller refused to deliver.

Another contract between the same parties, executed on the same day, called for the delivery of 10,000 bushels of amber durum at a price of $1.91 per bushel. The provisions of the durum contract were otherwise identical with the spring what contract. Delivery was made of the durum which was the subject of the second contract. The second contract is important to this action only to the extent that the acts of the parties in performing it illuminate the intentions and actions of the parties as to the spring wheat contract.

It is the contention of the seller that the wheat contract was breached by the buyer by failing to call for delivery within the period specified by the contract, and that the seller was excused from compliance by the failure of the buyer to call for delivery earlier. The seller sold the grain on or about September 9 to a different buyer at a large profit, the price of wheat having more than doubled between December 7, 1972, the date of the contract, and August 29, 1973, the date when the 60-day extension of the original final delivery date contemplated by the contract expired.

The buyer contends that he was within his rights in first calling for delivery of the grain on September 4, 1973, for several reasons: (1) that the dealings between the parties show that the delay was for the benefit of the seller and that the parties impliedly agreed to a delivery date later than August 29; (2) that there was a custom in the community and in the grain business that actual delivery dates were subsequently agreed upon by the parties irrespective of the provisions of written contracts; (3) that the delay was inconsequential and immaterial to both buyer and seller, and the contract was substantially complied with by the call for delivery six days after the term of the contract expired; and (4) that the seller had a duty to deliver the grain within the contract period, regardless of whether notice was given by the buyer to make delivery.

The seller asserts that time was of the essence of the contract, not by its terms but by statute and decisional law, and that there was neither custom nor agreement to justify the extension of time.

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