This section contains the nature of the case and procedural background.

Ziebarth (P) and Kalenze (D) entered into a written contract for P to purchase all of the Simmental heifer calves produced from D’s cows which were to be artificially inseminated with Simmental semen furnished by P. P claims that D breached the contract when he sold the calves to another party for $450 per head. P sued D for specific performance. The district court, without a jury, found for P. The court then awarded damages in the sum of $4,589 plus costs in lieu of specific performance. D moved at the end of the case for dismissal of the action on the ground that the pleadings asked for specific performance of the contract and the cattle were no longer available making specific performance impossible. The district court denied the motion. D appealed on grounds that he was denied a jury trial on the issue of damages, but, in fact, D never filed a demand for a jury in the trial court.

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