Terminal Grain Corp. v. Freeman, s. 12258
| Decision Date | 12 October 1978 |
| Docket Number | 12325 and 12335,Nos. 12258,s. 12258 |
| Citation | 270 N.W.2d 806 |
| Parties | 25 UCC Rep.Serv. 1 TERMINAL GRAIN CORPORATION, a corporation, Plaintiff and Respondent, v. Glenn FREEMAN, Defendant and Appellant. TERMINAL GRAIN CORPORATION, a corporation, Plaintiff and Appellant, v. Glenn FREEMAN, Defendant and Respondent. TERMINAL GRAIN CORPORATION, a corporation, Plaintiff and Respondent, v. Glenn FREEMAN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Harold Deering, Jr., of May, Adam, Gerdes & Thompson, Pierre, for plaintiff, appellant and respondent.
Glenn Freeman, pro se.
*
This is an action to recover damages for failure to deliver grain according to two alleged oral contracts. Plaintiff Terminal Grain Corporation (Terminal Grain) is a grain company doing business in Sioux City, Iowa. Defendant Glen Freeman (Freeman) is a farmer residing near the town of Midland in Jackson County, South Dakota. He represented himself at the trial and also on the appeals to this court.
In March 1972, Terminal Grain commenced an action against Freeman in the District Court of Woodbury County, Iowa, alleging the same cause of action involved in the present South Dakota action. Freeman appeared specially and challenged the jurisdiction of the Iowa Court. After a hearing the court concluded there were not the required minimum contacts to confer jurisdiction and the action should not be tried in Iowa because of the doctrine of forum nonconveniens. The Iowa Court entered its order sustaining in its entirety the special appearance of defendant.
Terminal Grain commenced the present action in South Dakota in 1976. Freeman's answer, among other things, contained two counterclaims for damages based on allegations of libel and slander and malicious prosecution. The extensive pretrial proceedings resulted in the following action by the trial court:
(1) The dismissal of Freeman's libel and slander counterclaim as it was barred by the statute of limitations contained in SDCL 15-2-15,
(2) Summary judgment was granted to Terminal Grain dismissing Freeman's counterclaim for malicious prosecution, and
(3) Freeman's motion for summary judgment on the cause of action alleged in the complaint was denied.
Freeman appealed from the summary judgment dismissing his counterclaim for malicious prosecution and from the denial of his motion for summary judgment on the main cause of action.
The remaining issues were submitted to a jury, resulting in a verdict for Terminal Grain in the amount of $89.80 on Count I of the complaint and a verdict for Freeman on Count II of the complaint. Both parties appealed from the verdict and final judgment. The three separate appeals have been combined for hearing and determination in this court.
The evidence relating to the grain transaction involved is sharply conflicting. A statement of facts in a light most favorable to a prevailing party, order or judgment is impossible, as some of the issues relate to pretrial motions and the jury rendered a It is undisputed that in the spring of 1972 Freeman sold some of his 1971 wheat crop to Kenneth Wheeler, a trucker residing in Midland, South Dakota. Wheeler paid for the wheat with his personal check and re-sold the wheat to Terminal Grain. Freeman was entirely satisfied with this sale to Wheeler. At the time, almost all of the grain handled or hauled by Wheeler was delivered to Terminal Grain in Sioux City. Wheeler was an independent trucker and never was an officer, agent, or employee of Terminal Grain. However, Wheeler would negotiate sales of grain between various farmers and Terminal Grain "to get the hauling." Also, at times, Wheeler would buy grain from farmers and re-sell to Terminal Grain, as he did with Freeman's 1971 wheat crop. Wheeler operated his trucking business at his home in or near Midland.
split verdict in favor of both parties. It is necessary, therefore, to summarize the conflicting facts according to the evidentiary version of both parties.
Late in August 1972, according to company witnesses, Terminal Grain needed 38,000 bushels of wheat to fill a river barge, and a premium would be paid for such grain. Wheeler called Freeman about this special deal. As a result of their telephone conversation Freeman went to the Wheeler home later that day. In Freeman's presence Wheeler called Dwayne Maher, Merchandising Manager of Terminal Grain. During their telephone conversation Wheeler said Freeman was interested in selling 8,000 bushels of his wheat. Maher quoted a price of $1.651/2 a bushel. Wheeler informed Freeman of the offer and the latter said "sell it." Wheeler then told Maher to send out a contract. Later that night Freeman called Wheeler on the telephone and said he wanted to defer selling 4,000 bushels until after January 1, 1973, for tax purposes. The next day Wheeler called Maher who agreed, over the phone, to the deferred delivery date and quoted a price of $1.71 per bushel on that 4,000 bushels. Wheeler testified he informed Freeman of the results of such telephone call. Accordingly, Maher prepared two written confirmations of the two oral agreements and mailed them to Freeman on August 31, 1972. No written objections to the confirmation orders were ever made by Freeman.
In September 1972, Wheeler removed approximately 4,000 bushels of wheat from Freeman's farm and delivered them to Terminal Grain. Freeman received payment for the five loads of grain by five checks issued by Terminal Grain. Due to a mistake, Terminal Grain split the 4,000 bushels between the two contracts, resulting in an $89.80 overpayment to Freeman on the $1.651/2 contract. Shortly after this time the price of wheat advanced substantially. Shortly after January 1, 1973, Freeman informed Wheeler he was not going to make delivery of the remaining 4,000 bushels of wheat. Fair market value of wheat at the time varied between $2.25 and $2.30 per bushel. Because of Freeman's refusal to deliver, Terminal Grain commenced this action for damages for the difference between the contract price and the fair market price at the time of nondelivery.
In contrast to Terminal Grain's evidence, Freeman denied going to or being in Wheeler's home at any time during August 1972, and he further denied that Wheeler ever called Terminal Grain at any time in his presence. According to Freeman, Wheeler called him on the telephone in late August 1972 about buying his 1972 wheat crop. In the course of their conversation Freeman informed Wheeler he was interested in selling only about half his crop. Wheeler quoted a price satisfactory to Freeman so he agreed to sell 4,000 bushels to Wheeler. Terminal Grain was never mentioned. The 4,000 bushels of wheat was removed by Wheeler's trucks and Freeman received payment by five checks issued by Terminal Grain. The form of payment was cleared up to Freeman's satisfaction when he heard at his "coffee club" that Wheeler might have an interest in Terminal Grain.
Thereafter, when the price of wheat advanced in the fall of 1972 Freeman stopped at the Wheelers' home to see about selling the balance of his wheat. In the course of their conversation Wheeler agreed to buy
the remaining 4,000 bushels, but before an agreement was made Wheeler suggested that Freeman check his records as the wheat might be under contract. Accordingly, Freeman went home and in searching his records found two written confirmation orders for the sale of his wheat to Terminal Grain. The confirmation orders were signed only by Dwayne Maher. In this regard, Freeman testified he had no prior knowledge of the confirmation orders and no knowledge, recollection, or record as to when they were received. He thought his wife must have received and put them in the files. His attorney advised him the confirmation orders did not constitute valid binding contracts so he refused to deliver any wheat under them.
In this appeal Freeman first alleges error in the summary dismissal of his counterclaim for damages because of Terminal Grain's alleged malicious prosecution of the Iowa and South Dakota actions against him.
The essential elements of an action for malicious prosecution are stated in Kunz v. Johnson, 74 S.D. 577, 582, 57 N.W.2d 116, 119, as follows:
(1) the commencement or continuation of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice; (6) damage conforming to legal standards resulting to plaintiff.
Contrary to Freeman's contentions, the trial court correctly ruled there was probable cause for the commencement of the Iowa and South Dakota actions as the pretrial record showed, as a matter of law, that Terminal Grain consulted with and acted upon the advice of competent counsel before instituting any action against Freeman. In a prior case, involving the same subject, this court held the advice of an attorney admitted to practice law is conclusive of the existence of probable cause, if the advice is sought in good faith and given after a full disclosure of the facts within the client's knowledge and information. McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351. See also Huntley v. Harberts, S.D., 264 N.W.2d 497.
The dismissal of the malicious prosecution counterclaim may further be sustained by the absence of another essential element of such an action, i. e., at the time of the summary judgment dismissing the alleged cause of action there had been no bona fide termination of any action in favor of Freeman on the merits. The Iowa action had been dismissed for lack of jurisdiction, and the South Dakota action had not been tried or terminated in any manner.
Freeman also contends in this appeal he was entitled to summary judgment against Terminal Grain, as...
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