Simpson Feed Co. v. Continental Grain Co., 14597.
| Decision Date | 28 October 1952 |
| Docket Number | No. 14597.,14597. |
| Citation | 199 F.2d 284 |
| Parties | SIMPSON FEED CO., Inc. v. CONTINENTAL GRAIN CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Fred M. Pickens, Jr., Wayne Boyce, Newport, Ark., and Charles Cole, Batesville, Ark., for appellant.
Karol A. Korngold, St. Louis, Mo., W. D. Murphy, Jr., Batesville, Ark., and Kaneaster Hodges, Newport, Ark., for appellee.
Before SANBORN, WOODROUGH and COLLET, Circuit Judges.
The defendant in this action for damages for the alleged breach of a sales contract has appealed from the judgment in favor of the plaintiff. The claim upon which the action was brought was that the defendant on September 14, 1950, had contracted in writing to sell, and the plaintiff had agreed to buy, 10,000 bushels of soy beans at $2.20 per bushel f. o. b. Newport, Arkansas, shipment to be made at seller's option in October or November, 1950; that after making delivery to the plaintiff of 2,000 bushels on or about October 31, 1950, the defendant refused to deliver the remainder of the beans contracted for; that on November 30, 1950, the last date for performance of the contract, the market price of soy beans was $2.73¾ per bushel, and the resulting loss to the plaintiff from the defendant's failure to perform was $.53¾ per bushel or $4,300.
The defendant in its answer and cross-complaint admitted the contract; admitted that it had delivered to the plaintiff 2,008.5 bushels of soy beans on or about October 31, 1950, for which the defendant had been partially paid; alleged that the plaintiff had breached the contract, thereby releasing the defendant from further performance; and asserted that there was still due from the plaintiff $441.87 on account of the October 31 shipment, for which amount the defendant demanded judgment.
Two controversial issues were presented: (1) Had the plaintiff been guilty of a substantial breach of the contract which relieved the defendant from performance? (2) If not, were the damages recoverable by the plaintiff to be measured by the market price of soy beans as of the date when the defendant had refused to perform, November 2, 1950, or as of the last date when performance was due, November 30, 1950?
The issues were tried to a jury. At the close of the evidence the plaintiff made a motion for a directed verdict on the ground that no defense to its claim had been established. The court reserved its ruling on the motion. The jury failed to agree and was discharged. The plaintiff thereafter moved for judgment under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. The motion was sustained. The court entered judgment for the plaintiff, ruling that as a matter of law the alleged breach of the contract by the plaintiff was unsubstantial and did not justify the failure of the defendant to perform its contract, and that the measure of the plaintiff's damages was the difference between the contract price and the market price of the undelivered beans on November 30, 1950, the last date upon which performance was due under the contract. Continental Grain Co. v. Simpson Feed Co., Inc., D.C., 102 F. Supp. 354.
There is little dispute as to the facts which gave rise to this controversy. On October 30, 1950, the defendant had a carload of beans (about 2,000 bushels) for the plaintiff and called for shipping instructions which the plaintiff was obligated to furnish. These instructions were promptly given and the car was shipped. The defendant sent the plaintiff a draft for 90% of the purchase price, which was paid upon presentation. The balance of the purchase price, amounting to $441.87, has not been paid.
On the night of October 30, 1950, the defendant loaded another car of beans for the plaintiff, and on October 31, by telephone, asked the plaintiff's agent for shipping instructions. There is a dispute in the evidence as to this telephone conversation. The plaintiff's version is that the defendant's agent was informed that the plaintiff was seeking a permit for shipment to New Orleans, but had not yet received it; that the defendant's agent asked when the permit would be obtained and was told that it might be in thirty...
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