Wilson & Co. v. Fremont Cake & Meal Co., 32745

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS; MESSMORE; CHAPPELL
• Citation: 43 N.W.2d 657,153 Neb. 160
• Decision Date: 24 July 1950
• Docket Number: No. 32745,32745
• Parties: WILSON & CO. v. FREMONT CAKE & MEAL CO.

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43 N.W.2d 657 153 Neb. 160 WILSON & CO.
v.
FREMONT CAKE & MEAL CO. No. 32745. Supreme Court of Nebraska. July 24, 1950.

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Syllabus by the Court.

1. In determining whether or not a verdict should have been directed by the trial court, the evidence must be considered in the light most favorable to the party

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against whom the motion was made; that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.

2. Where arbitration constitutes a part of the contract between parties to it and an attempt is made to enforce arbitration by invoking the Federal Arbitration Act, in the courts of this state the issue is one of procedure and not of substantive right, and the laws of this state are controlling.

3. In this jurisdiction a provision in a contract requiring arbitration, whether of disputes arising under the contract generally or only of the amount of any loss or damages sustained by the parties thereto, will not be enforced; nor will refusal to arbitrate be available in an action growing out of the contract.

[153 Neb. 161] 4. Where a certain date is fixed as the time limit for delivery of six tank cars of soybean oil by the seller to the purchaser, and by subsequent agreement between the parties in the form of correspondence the time limit date for delivery is postponed, such agreement does not discharge the original contract, but the same remains in full force, changed only to the extent that delivery is postponed.

5. If a party by his contract creates a duty or imposes a charge upon himself, he must under any and all conditions substantially comply with the undertaking.

6. Inconvenience or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful.

7. A contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect, because it turns out to be difficult or burdensome to perform.

8. An abnormal rise in the price of soybean products due to war or unusual trade conditions, so that the processor thereof cannot perform a contract to process and deliver the same to a contractee without greater expense than anticipated, is not an impossibility excusing performance.

9. The measure of damages is the difference in the contract price of the merchandise and the market value of the same at the time to which delivery is postponed. If delivery is postponed by agreement of the parties, the market value at the time to which delivery is postponed is taken as the criterion.

Beghtol & Rankin, Kenneth E. Anderson, Nate C. Holman, John C. Mason, all of Lincoln, Sidner, Lee & Gunderson, George E. Svoboda, all of Fremont, for appellant.

Kennedy, Holland, DeLacy & Svoboda, Omaha, Spear, Lamme & Flory, Fremont, Louis R. Simpson, Chicago, Ill., for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action at law brought by the plaintiff, Wilson & Company, a corporation, against the Fremont Cake [153 Neb. 162] & Meal Company, a corporation, to recover damages for the alleged breach of contract for the sale and delivery of soybean oil to the plaintiff. At the close of all the evidence the plaintiff moved for a directed verdict. This motion was sustained. From the overruling of defendant's motion for a new trial and entry of judgment on the verdict in the amount of $41,175 and costs, the defendant perfected appeal to this court.

For convenience we will refer to the appellant, Fremont Cake & Meal Company, a corporation, as the Fremont company, and to the appellee, Wilson & Company, corporation, as Wilson & Company. The Commodity Credit Corporation, Washington, D. C., a corporate agency of the United States government, will be referred to as the CCC, and the Office of Price Administration, an agency of the United States government, as the OPA.

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We review the record with the following rule in mind: 'In determining whether or not a verdict should have been directed by the trial court, the evidence must be considered in the light most favorable to the party against whom the motion was made; that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.' Thoren v. Myers, 151 Neb. 453, 37 N.W.2d 725, 727.

The following facts are not in substantial dispute: On August 10, 1945, Wilson & Company entered into a contract identified as No. 3447-W, negotiated by B. E. Forssell, the manager of the refinery department of Wilson & Company, through the Marwood Company, Incorporated, a brokerage concern. The contract was confirmed by B. E. Forssell, and is as follows:

Seller 'August 10, 1945 No. 3447-W MARR SOYBEAN PROCESSING COMPANY, 130 North Broad Street, Fremont, Nebraska.

[153 Neb. 163] Buyer WILSON AND COMPANY, Refinery Department, 4100 South Ashland Avenue, Chicago 9, Illinois.

Gentlemen: We confirm transaction today for your account as follows:

Commodity SOYBEAN OIL.

Quality Crude.

Quantity Thirty six (36) Buyer furnishing tankcars of approximately 61,000 pounds capacity each.

Weights Certified.

Price Eleven and three-quarters cents (11-3/4cents) per pound (or O.P.A. ceiling price in effect at time of shipment) f.o.b. Fremont, Nebraska.

Terms Sight Draft/Bill of Lading attached for amount of invoice, free of exchange to buyer. Weights & quality guaranteed at destination.

Time Shipment Three (3) tankcars each month October, 1945, through September, 1946.

From Other Conditions Fremont, Nebraska. Seller warrants that crude soybean oil covered by this contract will be produced from beans acquired in accordance with his processor contract with the CCC, or any other government agency controlling the marketing and crushing of oilseeds during season 1945-46. This contract is subject to any government regulation controlling the movement and allocation of crude soybean oil. Subject to tankcar regulations by ODT.

Rules Brokerage National Soybean Processors Association.

[153 Neb. 164] This confirmation is made in triplicate, one copy being sent to the buyer, one to the seller, and one retained on file in this office.

MARWOOD COMPANY, INC.

As Brokers Only By Marvin Wood

Buyer to have privilege of unloading shipments immediately on receipt, seller to be notified by mail of details as to quality and weight adjustment.'

On or about September 1, 1945, the Fremont company succeeded to the business of the Marr Soybean Processing Company. The Fremont company, with the consent of Wilson & Company and the Marr Soybean Processing Company, adopted and agreed to carry out the terms of the contract set out, and which will hereinafter be referred to as the contract. The Fremont company, under the terms of the contract, delivered to Wilson & Company 30 tank cars of soybean oil at the price provided for in the contract. When the Fremont company assumed the contract it was obligated to take over contracts to furnish Armour & Company 36 cars of

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oil, the Interstate Cottonseed Oil Refining Company a minimum of 33 cars, in addition to the 36 cars for Wilson & Company, making the total commitment of 105 cars of oil.

On September 10, 1945, Harry E. Wiysel, manager of the Fremont Company, signed for the company the CCC contract. The CCC contract provided: '1. Purchase of Soybeans. The processor shall purchase for his own account, upon the terms and conditions hereinafter specified, soybeans of the 1945 crop, either directly from producers or from others who have paid producers not less than the support prices specified * * * in a total quantity not in excess of the quantity he can process on or before October 10, 1946 (to be [153 Neb. 165] determined by multiplying the total daily capacity of the Plant * * *).'

The last delivery was made by the Fremont company on September 24, 1946, leaving six tank cars of soybean oil to be delivered to Wilson & Company, which were never delivered and which constitute the subject matter of the instant case.

The plaintiff's petition alleged that six tank cars of soybean oil remained undelivered under the contract; that by mutual consent the time for delivery of the same was extended so that there could be delivered during the latter part of October 1946, three of the tank cars of soybean oil, and the last three during the latter part of November 1946. Due to the failure of delivery as pleaded, the plaintiff prayed damages in the amount of $43,005, based upon the failure of the Fremont company to perform the contract.

The defendant's answer, insofar as the same need be considered, alleged in substance that delivery under the contract was to be made from October, 1945, through September 1946; the soybean oil to be furnished under the contract was required to be produced according to the Fremont company's contract with the CCC or any other government agency controlling the marketing and crushing of soybeans into oil during the 1946 season which ran from September 10, 1945, to October 10, 1946; that the defendant used all soybeans allowed it under the CCC contract and allocated the oil processed therefrom between the three contracts to which it was committed when it assumed the contract from the Marr company; and that defendant notified plaintiff it would be required under a prior contract, before proceeding with new contracts, to furnish two tank cars of soybean oil. Defendant also alleged that Wilson & Company was advised early in October 1946, that the contract could not be fulfilled because of government regulations controlling the movement and allocation of soybean oil, and its processor's contract; that any default that occurred [153 Neb. 166] was on or before October 1, 1946; and further, that Wilson & Company gave no notice of default as...