Taylor v. George, CA 04-1173.

• Decision Date: 07 September 2005
• Docket Number: No. CA 04-1173.,CA 04-1173.
• Citation: 212 S.W.3d 17
• Parties: Mike TAYLOR, Appellant v. Nathan GEORGE, Appellee.
• Court: Arkansas Court of Appeals

212 S.W.3d 17

Mike TAYLOR, Appellant v. Nathan GEORGE, Appellee.

No. CA 04-1173.

Court of Appeals of Arkansas, Division I.

September 7, 2005.

Jesse B. Daggett, Marianna, for appellant.

Raymond R. Abramson, Clarendon, for appellee.

TERRY CRABTREE, Judge.

This appeal is from an order of the Phillips County Circuit Court awarding judgment to appellee Nathan George for a small portion of the damages he sought against Mike Taylor for breach of a 2002 agricultural-service contract. Taylor has appealed from this award to George, and George has filed a cross-appeal seeking more damages and attorney's fees. On direct appeal, we reverse the trial court's award of damages to George for breach of the parties' 2002 contract. Because Taylor has not appealed from an award to George regarding a separate agreement in 2001, we affirm that aspect of the decision and modify the judgment accordingly. We affirm on the cross-appeal.

Taylor is a farmer, and George is a custom cotton harvester. For several years prior to the fall harvest of 2002, George harvested at least a portion of Taylor's cotton crop. The parties agree that they entered into an oral contract for George to harvest all 1100 acres of Taylor's 2002 crop. They disagree, however, about when George was required to begin performance. According to Taylor, George was to begin harvesting his crop when it matured, which usually occurred the last week of September or the first week of October. George, however, maintains that he was not required to begin harvesting Taylor's crop until after he had finished harvesting a 2000-acre cotton crop for another farmer, Glen Kale. For many years, George harvested Kale's crop before he harvested Taylor's crop; this was possible because, in the past, Kale's cotton matured a few weeks earlier than Taylor's cotton, usually in early September.

In 2002, George's three 1993-model John Deere four-row, single-wheel cotton pickers, which lacked rear-wheel assists, were in need of extensive repairs. Before the 2002 harvest season, George hired a cotton-picker technician, Chuck Watkins, to overhaul the pickers, spending approximately $67,660, which George borrowed from his bank. George also performed some of the repairs himself. According to George, he entered into this debt for the overhaul of the pickers in reliance on Taylor's promise that he could harvest all of Taylor's crop. Taylor disputes this.

In 2002, Kale's cotton matured late, and George did not begin harvesting Kale's cotton until September 30. Taylor's cotton, however, matured at its usual time in late September. Around October 1, Taylor's son, Mike Taylor, Jr., came to see George in one of Kale's fields and told George that Taylor's cotton was ready for harvest and that, because the rainy weather was predicted to worsen, he had made arrangements to borrow a picker from the Christines, who were friends of the Taylors, and would begin harvesting with that picker. Taylor used the Christines' picker about a week and, with it, was able to harvest approximately 200 acres of his cotton. The rainy weather continued, and, while George was still harvesting Kale's cotton, Taylor leased a six-row John Deere picker with rear-wheel assists from a local equipment dealer, obtaining the dealer's permission to return that picker whenever George was able to help Taylor. Because of the steady rains, Taylor could not begin harvesting his crop with the leased picker until a week or so later. George learned that Taylor had leased this picker and contacted Taylor, who acknowledged that he had leased the picker to harvest as much of his crop as possible until George could arrive to complete the harvest. During this period of time, Mike, Jr., stayed in contact with George by telephone, each advising the other of the progress they were making in harvesting the crops. The weather remained rainy, and the fields were extremely muddy. When most of his crop had been harvested, Taylor borrowed from his friends, the Carnathans, some harvesting equipment that was capable of functioning in muddy conditions.

In early November, Alan Evans asked George to harvest his 900 acres of cotton. Without first contacting Taylor, George declined the offer. George completed his harvest of Kale's crop on November 11 and called Taylor to let him know that he would be at Taylor's farm the next day. Taylor then told George that his harvest would be complete the next day and there was, therefore, no need in George's coming. When George called Evans back about his offer, Evans had already made other arrangements.

On April 11, 2003, George sued Taylor for breach of contract, for which he sought $110,000; promissory estoppel, for which he sought $90,000 for the overhaul of his cotton pickers; and $12,500 that Taylor allegedly owed him for the harvest of 2001. In his answer, Taylor asserted that George was not ready, willing, and able to pick his 2002 crop in a timely manner and stated that he had received no bill for the balance due for 2001. Taylor argued that the parties' agreement was based upon the expectation that George would harvest the crop in a timely manner and that he could make other arrangements if George was unable to perform. He also said that he had taken the necessary steps to harvest his crop because George was "bogged down in the fields of Glen Kale due to the wet weather." Taylor asserted that George's inability to timely harvest his crop excused Taylor's performance of the contract. In an amended answer, Taylor asserted that he had mitigated his damages by harvesting his own crop and that any expenses he incurred in doing so should be set off against any damages that George might recover. He also contended that George had a duty to mitigate his own damages by accepting other work once he knew that Taylor was harvesting his own crop, and that George failed to do so.

At trial, Taylor paid George for the amount due on the 2001 contract. George testified on his own behalf and offered the testimony of Chuck Watkins, Alan Evans, Glen Kale, Julie Aydelotte (his accountant), and Danny Moser (his banker). Taylor testified on his own behalf and presented the testimony of Robert Lee (his accountant), Ed Whatley (an agricultural entomologist), Chris Carnathan (a farmer), Harry Stevens (a farmer), Mike, Jr., and George.

In a February 6, 2004 letter opinion, the circuit judge found that the parties imposed no deadline for George to start harvesting Taylor's crop or any restrictions against the possibility of adverse weather conditions. The judge stated:

Based upon ... the ... testimony provided the court finds that an openend start date would not be reasonable term of agricultural contract. The court does not find that the Defendant entered into a contract containing a term of that nature. As testified, time of picking cotton is an important consideration to a farmer and harvester. While an exact date may not be agreed upon by the parties, in an [sic] verbal contract regarding crops, a reasonable time after maturity of the crops to commence harvest is a term and condition of the contract. As a general rule, Defendant's cotton matured after Plaintiff had finished with the Kale field's but not in 2002. Plaintiff was aware of the actions taken by the Defendant to ensure his crop was harvested in a timely fashion. Plaintiff was kept informed of this progress by the telephone conversation with Mike, Jr., Defendant's agent whom Plaintiff had dealt with in the past.

In one of these conversations, Plaintiff was specifically informed the Defendant had approximately 500 acres remaining to be picked. Plaintiff was thereafter offered the 900 Evans land and made no effort to check with Defendant about the status of Defendant's harvest. Defendant, on the other hand did not inform Plaintiff of the additional assistance provided by the Carnathans.

By borrowing the Christine picker, renting the 6—row picker informing the Plaintiff of his actions, the Defendant was taking reasonable efforts to protect his crop and mitigate the potential loss. The use of the Carnathan picker was also an effort of similar nature however here the Defendant failed to inform Plaintiff of this step. Plaintiff testified, and the court finds this testimony credible, with this information he would have contacted Evans and obtained other work. However, due to the Defendant's failure to contact him, he did not have this option.

The Plaintiff is entitled to recover the profit, that would have been realized from picking the 200 acres, that the court find was picked by the Carnathan equipment.

On March 5, 2004, the circuit judge entered a judgment incorporating her letter opinion, finding that Taylor had not entered into a contract with an open-ended starting date because that would not be a reasonable term of an agricultural contract. She also found that the time of picking cotton is an important consideration to a farmer and that, in a verbal agreement without an exact date, a reasonable time after maturity of the crop is a term and condition of the contract. She awarded judgment to George in the amount of $7500 for the profit he would have realized from picking the 200 acres that was picked by the Carnathan equipment. George moved for an award of attorney's fees and for prejudgment interest on the amount that Taylor had paid him for the 2001 harvest on the first day of trial. He also moved for reconsideration of the amount awarded him, which the court granted, finding that George's profit should have been $13,152. The judge also granted his request for prejudgment interest but denied his request for attorney's fees. An amended judgment increasing George's damages award to $13,152, granting judgment in the amount of $929.60 for the 2001 prejudgment interest, and denying his request for attorney's fees, was entered on April 7, 2004. Both parties appealed from the decision. Taylor does not, however, dispute the award to George of $929.60 for prejudgment...