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.

b.           Issue. 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 performance?

c. Held. No. Judgment vacated on the issue of damages.

1)          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 excuse performance.

2)          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.

d.           Comment. 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.

All participants in the study group must always follow the BSL Honor Code.