Yoder v. Nutrena Mills, Inc.

• Decision Date: 20 September 1961
• Docket Number: No. 16645.,16645.
• Citation: 294 F.2d 505
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: J. Paul YODER and Lowell Yoder, Appellants, v. NUTRENA MILLS, INC., Appellee.

294 F.2d 505 (1961)

J. Paul YODER and Lowell Yoder, Appellants, v. NUTRENA MILLS, INC., Appellee.

No. 16645.

United States Court of Appeals Eighth Circuit.

September 20, 1961.

A. C. Cahill, Iowa City, Iowa, for appellant. Messer & Cahill, Iowa City, Iowa, on the brief.

Charles A. Hastings, Cedar Rapids, Iowa, and Wayne C. Collins and Elliott, Shuttleworth & Ingersoll, Cedar Rapids, Iowa, on the brief, for appellee.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

BECK, District Judge.

This appeal, in a diversity suit with all jurisdictional requirements met, is from two judgments¹ granted on a motion for a summary judgment in an action by the appellee, hereinafter referred to as Nutrena, based on written contracts and promissory notes executed and delivered pursuant thereto, covering the appellants' 1957 turkey raising operation, which within the credit limitations specified in the written contracts was to be financed by Nutrena.

The trial court's decision under the motion that the record presented "no genuine issue as to any material fact", is founded on a three-count complaint, the answer thereto and counterclaim, the reply and depositions taken by both sides which are referred to in the trial court's opinion as extensive.

That record, within the restrictions against short circuiting trials on material issues of fact referred to in Ford v. Luria Steel & Trading Corp., 8 Cir., 1951, 192 F.2d 880, Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 1951, 189 F.2d 213 and United States v. Farmers Mut. Ins. Ass'n of Kiron, Iowa, 8 Cir., 1961, 288 F.2d 560, appears to us to have settled and established all questions of fact, to the point of leaving "no genuine issue as to any material fact". 192 F. 2d 882.

On that point leaving generalities out and specifics in, we note: (1) the appellants' admission that the written contracts referred to in the two counts before us on this appeal are true and correct written contract commitments made by the appellants as they signed the one, November 8, 1956², and the other on December 13, the only difference between "A" copied in the margin and "B", aside from the dates of the contracts and the respective acceptance dates, being the credit limitations fixed at $7,125, number of turkeys 2,500, and J. Paul Yoder signing the partnership name of J. Paul Yoder and Son by J. Paul Yoder; (2) their further uncontroverted admission that Exhibits "B"³ and "D"⁴ show how the contemplated transactions were performed, the number of notes, the amount of each and dates, total interest accrued, total credits and final due date balance of $16,760.74 on the one and $1,964.56 on the other; and (3) uncontroverted and compelling evidence that there is no factual basis for the appellants' denial that it did not have "any information or knowledge as to the truth of the allegations contained in Par. 1" of the appellants' complaint:

"That plaintiff is a corporation organized and existing under the laws of the State of Kansas and is a citizen of the State of Kansas and is authorized to do business in the State of Iowa and maintains an office for that purpose in Cedar Rapids, Iowa."

Moreover, there is an implied admission by the appellants that there is no "genuine issue as to any material fact" as they predicate their only defense to each of the balances alleged to be due under the two contracts, under the averments in their answer:

"Defendants admit the allegations contained in Par. 4⁵ of Plaintiff\'s petition but alleges that said agreement referred to as Exhibit `A\' was delivered by the defendants to the Plaintiff, Nutrena Mills, Inc., upon stated and specific conditions, towit: That the Plaintiff, Nutrena Mills, Inc., would furnish sufficient feed to feed out all the turkeys purchased by the defendants or raised by them without regard to the maximum amount set forth in said Exhibit `A\' and would provide the necessary financing to pay off the balance remaining due on the turkey operation from the preceding year which conditions were orally expressed and were understood between defendants and the agents and representative of the plaintiff and were relied upon by these defendants.

"Defendants admit that Plaintiff advanced certain sums of money in pursuance to the agreement, Exhibit `A\', and defendants admit that they executed several promissory notes all as alleged by plaintiff, but defendants allege that each and all of said promissory notes were executed and delivered upon the same and identical conditions and in pursuance of said agreement and were each and all a part and parcel of the entire transaction all as is set forth in the preceding paragraph. Defendants admit that a portion of said notes and interest have not been paid but deny that they are indebted to the plaintiff for the reason that the plaintiff violated the terms of the agreement and condition upon which said agreement and notes were delivered in that plaintiff refused to carry out the terms thereof by refusing to deliver any additional feed to the defendants, or furnish additional financing, well knowing that such refusal would cause serious and irreparable damage to these defendants. That the damage caused to the defendants exceeds any amount claimed to be due or owing to the plaintiff as elsewhere herein set out and defendants deny that Exhibit `B\' attached to Plaintiff\'s complaint shows the amount now due and owing, and defendants deny that they are indebted to the plaintiff in any amount as alleged by plaintiff."

To that array of reasons, which "in" part, no doubt, prompted the trial court's action on the motion, we add all of Yoder's testimony as it is reproduced in appellants' brief since it is the only specific oral proof submitted on the pleaded "conditional delivery":

"A. And so Kalkbrenner brought his contract around and started filling it out, and he put the pressure on me. In other words, he was determined that I go ahead, and I said, `You know how I feel, I would like to have a chance for at least several weeks to do some shopping around.\' I had already, and he said, `You know we have always taken care of you in the past, and we never had any troubles,\' and he said, `I know that you didn\'t come out very well here, but that —\' Well, we had a — just a good old conversation, and he had his contract filled out and he shoved it out to me to sign it, and Lockwood had — I had told you previously Lockwood and I had talked before Kalkbrenner brought his contract.

"Q. That was early in October?

A. No, it was the same date.

"Q. Oh, it was the same date. A. It was the same date, but when Lockwood got through he approached me and took me over to another table. That is where we talked in the office, and so I — I took the contract and I hesitated. I read it and I signed it, and I picked it up, and I told Kalkbrenner, I said, `I will give you this contract under one condition, that you will take care of me the way you did in the past, and that we will — and you will take us — your company will take me through this turkey year, stand back of me and furnish me the feed to go through, just as Lockwood and I had talked, and if you will, I will let you have this contract,\' and he said, `We have in the past, and we are going to do it in the future. We will do it next year.\' So I gave it to him."

Subsection (c) of Rule 56, F.R. C.P., 28 U.S.C.A., that: "The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law * * *", within the restrictions to which we have referred, vests power in the trial court, as such a motion is invoked, to summarily decide whether or not the requirements of that subsection have been met, its actions, in such cases, necessarily being co-extensive, with the powers it is called on to exercise, when it rules on admissibility of evidence in the course of regular trials. Judge Sanborn's comment in the Ford v. Luria Steel & Trading Corp. case, points in that direction:

"The controlling question in this case is whether evidence to establish the defendants\' alleged oral profit-sharing agreement would be admissible upon a trial. Nothing is more futile than calling a jury to determine a fact the existence of which is not susceptible of proof." 192 F.2d 882.

Here, as in that case and in view of the limited scope⁶ given by the appellants to this appeal, we are principally concerned with the application of one of the exceptions to the Iowa parol evidence rule referred to In re Simplot's Estate (Rooney v. Lenehan), 1933, 215 Iowa 578, 246 N.W. 396, 398:

"Parol evidence is admissible to prove that the delivery of a contract in a given case was conditional only and that compliance with the condition failed. Such parol evidence must be directed solely to the fact of delivery and to the conditions thereof. Such parol evidence does not operate to alter in any way the terms of the contract. If conditional delivery be proved, and that compliance with the condition failed, then the entire contract fails regardless of its terms. The entire contract is deemed not to have become effective."

More precise application of that exception can be had, however, as we view it in the light of the Iowa court's construction of that state's parol evidence rule and in the light of definitions by other authority. This phase of the case is summarized by the trial court in its opinion, Nutrena Mills, Inc. v. Yoder, D.C.N.D.Iowa 1960, 187 F.Supp. 415, 419:

"The instant case is principally concerned with an application of the Iowa parol evidence rule. This rule, rather than being a rule of evidence, is a rule of substantive law. Fidelity Savings Bank v. Wormhoudt Lumber Co., Iowa 1960, 251 Iowa 1121, 104 N.W.2d 462, 465; Williams v. Williams, Iowa 1959 251 Iowa 260, 100 N.W.2d 185, 188; Martin v.

...