Appeal from the Iowa District Court for Shelby County, Mark J. Eveloff, Judge.
In a contract dispute, a grain dealer-buyer appeals the district court's grant of summary judgment for the farmer-seller.
Andrew Collins of Erickson & Sederstrom, Omaha, Nebraska, for appellant.
Robert Livingston of Stuart Tinley Law Firm LLP, Council Bluffs, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
The threat of Missouri River flooding during the spring and summer of 2011 prevented grain-dealer Hansen-Mueller from accepting farmer Scott Gau's corn at its Council Bluffs elevator during the delivery time specified in the contract. Hansen-Mueller refused Gau's offer to deliver the corn to an alternative location. When Gau cancelled the contract, Hansen-Mueller sued for damages. The district court granted Gau's motion for partial summary judgment. Hansen-Mueller appeals, arguing Gau did not tender the corn for delivery and did not have the right to cancel the contract. Because we find Gau's requests to deliver his corn to the Council Bluffs elevator or elsewhere met the requirements for tender and because impracticality did not excuse Hansen-Mueller's failure to accept delivery, we affirm.
I. Background Facts and Proceedings
Hansen-Mueller is a Nebraska company operating a grain elevator in Council Bluffs, Iowa. Scott Gau is an Iowa farmer. On August 26, 2010, Hansen-Mueller contracted with Gau to purchase 7500 bushels of yellow corn to be shipped between June 1 and June 30, 2011, at a price of $4.35 per bushel. Gau called Hansen-Mueller repeatedly during the month of June 2011 requesting to deliver the corn. But because of the threat of impending flooding in and around the area of the grain elevator, Hansen-Mueller refused to accept the corn delivery, claiming storage at this facility became impractical. Gau offered to deliver the corn to another Hansen-Mueller elevator but Hansen-Mueller refused. Hansen-Mueller accepted other deliveries of grain at the Council Bluffs facility for the purposes of blending with its supply so the company could remove the grain on hand.
On July 18, 2012, Gau unilaterally cancelled the contract in writing, stating the contract was void "[b]ecause Hansen-Mueller failed to take delivery of the corn within the shipment period designated by the contract." Gau stored the corn until he sold it in October 2011 for $6.10 per bushel, realizing a $13, 125 profit.
On August 19, 2011, Hansen-Mueller filled a petition requesting damages of $22, 425—"the difference between the parties' contract price and the market price on the date [Gau] repudiated the contract." Gau responded, asserting an affirmative defense that Hansen-Mueller breached the contract by not accepting Gau's delivery, thus entitling Gau to cancel the contract. Gau also counterclaimed to recover "damages for storage and transport of the contract corn" incurred because of Hansen-Mueller's breach.
Gau filed a motion for partial summary judgment on April 23, 2012. Hansen-Mueller subsequently filed a motion for summary judgment. After the court denied the motions on August 21, 2012, both parties filed motions to reconsider.
On November 16, 2012, the district court granted Gau's motion for summary judgment. The court held because Hansen-Mueller refused to accept Gau's delivery and the parties' contract did not include a clause extending the time for delivery in such cases, Gau was justified in ...