National Farmers Organization v. Bartlett And Company, Grain

560 F.2d 1350 (8th Cir. 1977)

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Nature of the Case

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Facts

P and D had entered into forty-five contracts for the sale of grain. Thirty-one were performed in full by both parties and are not in issue. The remaining fourteen are at issue. Beginning early in December 1972 and continuing throughout January 1973 D 'was retaining some of the purchase price of grain actually delivered as protection against realized or potential loss caused by failure on P's part to perform all contracts not yet fully performed. On several occasions during December and January P made verbal demands for the purchase price of grain already delivered. On or about January 26, 1973, P notified D that they were not going to deliver any grain on any of the 14 outstanding contracts between the parties unless and until D paid a substantial amount of money due on deliveries already made. Thereafter, no grain was ever tendered under any of the contracts even though a substantial payment was received and accepted. D elected to treat the notification as an anticipatory repudiation of the contracts not yet due. On January 30, D sent the P the following telegram (punctuation supplied in part): AS OF TODAY'S MARKET CLOSE WE ARE BRINGING ALL OUTSTANDING CONTRACTS WE HAVE WITH YOUR OFFICE TO CURRENT MARKET PRICE, NAMELY, OUR CONTRACTS 996, 1338, 1366, 1371, 1380, 1425, 1575, 1729, AND 22868. SETTLEMENT WILL BE FORTHCOMING. The credit and debit memos claimed setoffs on thirteen of the fourteen contracts. D deducting the claimed setoff of $45,840.81 from the net balance due of $74,814.39, sent P a check dated February 9 for the $28,973.58 difference. The check was subsequently paid. At issue herein is the propriety of claimed setoffs, totaling $18,441.62, on those contracts having last delivery dates subsequent to January 31. The court ruled for D and P appealed.