Law School Site - Case Brief
Bunge Corp. v. Recker, 519 F.2d 449 (8th Cir. 1975).
Act of God--
Facts. Bunge (P), a grain dealer,
contracted with Recker (D), a farmer, to purchase 10,000 bushels
of soybeans at $3.35 per bushel. The contract did not specify the
origin of the beans, except that they were to be grown
within the continental United
States. P was entitled to extend the time of delivery if desired.
During the delivery month (January), P's agents visited D's farm
and observed that D's beans were unharvestable. P notified D that
he had not made delivery and extended the time for delivery by two
months. At the end of the original delivery month, the price was
$4.98 per bushel; at the end of the two-month extension, the price
was $5.50 per bushel. D never delivered the beans, and P sued for
the difference between the contract price and the market price as
of April 2, the first market day after expiration of the extended
period. D admitted that he did not deliver the beans but sought to
excuse his nonperformance by reason of an act of God. The trial
court held D liable, but only for the contract price/market price
as of January 31. P appeals.
When an act of God destroys
the goods that the seller intended to deliver, but those goods
were not identified in the contract, is the seller excused from
c. Held. No. Judgment
vacated on the issue of damages.
The contract did not specify that the beans to be delivered
were to come from D's farm. Instead, they were to be grown
anywhere within the continental United States. D could have
performed by delivering beans acquired from another grower. The
fact that the beans he intended to deliver were destroyed does not
The trial court awarded the contract price/market price
differential on the theory that P lacked good faith in extending
the delivery date after it knew that D's crop was destroyed. The
lack of good faith argument was not asserted by D as an
affirmative defense, however. P was not given sufficient notice on
this theory, and the judgment must be vacated as to damages. A new
trial is required to determine whether P acted in good faith.
In order to discharge the
contract, it must appear that a particular source of supply or
means for performance was contemplated or specified by both
parties to the contract.
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