APPEAL from the Circuit Court of Bureau County; the Hon. C.
HOWARD WAMPLER, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT: Rehearing denied June 21, 1973.
Richard Oloffson, d/b/a Rich's Ag Service appeals from a judgment of the circuit court of Bureau County in favor of appellant against Clarence Coomer in the amount of $1,500 plus costs. The case was tried by the court without a jury.
• 1, 2 Oloffson was a grain dealer. Coomer was a farmer. Oloffson was in the business of merchandising grain. Consequently, he was a "merchant" within the meaning of section 2-104 of the Uniform Commercial Code. (Ill. Rev. Stat. 1969, ch. 26, § 2-104). Coomer, however, was simply in the business of growing rather than merchandising grain. He, therefore, was not a "merchant" with respect to the merchandising of grain.
On April 16, 1970, Coomer agreed to sell to Oloffson, for delivery in October and December of 1970, 40,000 bushels of corn. Oloffson testified at the trial that the entire agreement was embodied in two separate contracts, each covering 20,000 bushels and that the first 20,000 bushels were to be delivered on or before October 30 at a price of $1.12 3/4 per bushel and the second 20,000 bushels were to be delivered on or before December 15, at a price of $1.12 1/4 per bushel. Coomer, in his testimony, agreed that the 40,000 bushels were to be delivered but stated that he was to deliver all he could by October 30 and the balance by December 15.
On June 3, 1970, Coomer informed Oloffson that he was not going to plant corn because the season had been too wet. He told Oloffson to arrange elsewhere to obtain the corn if Oloffson had obligated himself to deliver to any third party. The price for a bushel of corn on June 3, 1970, for future delivery, was $1.16. In September of 1970, Oloffson asked Coomer about delivery of the corn and Coomer repeated that he would not be able to deliver. Oloffson, however, persisted. He mailed Coomer confirmations of the April 16 agreement. Coomer ignored these. Oloffson's attorney then requested that Coomer perform. Coomer ignored this request likewise. The scheduled delivery dates referred to passed with no corn delivered. Oloffson then covered his obligation to his own vendee by purchasing 20,000 bushels at $1.35 per bushel and 20,000 bushels at $1.49 per bushel. The judgment from which Oloffson appeals awarded Oloffson as damages, the difference between the contract and the market prices on June 3, 1970, the day upon which Coomer first advised Oloffson he would not deliver.
Oloffson argues on this appeal that the proper measure of his damages was the difference between the contract price and the market price on the dates the corn should have been delivered in accordance with the April 16 agreement. Plaintiff does not seek any other damages. The trial court prior to entry of judgment, in an opinion finding the facts and reviewing the law, found that plaintiff was entitled to recover judgment only for the sum of $1,500 plus costs as we have indicated which is equal to the amount of the difference between the minimum contract price and the price on June 3, 1970, of $1.16 per bushel (taking the greatest differential from $1.12 1/4 per bushel multiplied by 40,000 bushels). We believe the findings and the judgment of the trial court were proper and should be affirmed.
• 3, 4 It is clear that on June 3, 1970, Coomer repudiated the contract "with respect to a performance not yet due." Under the terms of the Uniform Commercial Code the loss would impair the value of the contract to the remaining party in the amount as indicated. (Ill. Rev. Stat. 1969, ch. 26, § 2-610.) As a consequence, on June 3, 1970, Oloffson, as the "aggrieved party", could then:
"(a) for the commercially reasonable time await performance by the repudiating party; or
(b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; * * *"
If Oloffson chose to proceed under subparagraph (a) referred to, he could have awaited Coomer's performance for a "commercially reasonable time." As we indicate in the course of this opinion, that "commercially reasonable time" expired on June 3, 1970. The Uniform Commercial Code made a change in existing Illinois law in this respect, in that, prior to the adoption of the Code, a buyer in a position as Oloffson was privileged to await a seller's performance until the date that, according to the agreement, such performance was scheduled. To the extent that a "commercially reasonable time" is less than such date of performance, the Code now conditions the buyer's right to await performance. (See Ill. Rev. Stat. Annot. 1969, ch. 26, § 2-610, Illinois Code Comment, Paragraph (a)).
If, alternatively, Oloffson had proceeded under subparagraph (b) by treating the repudiation as a breach, the remedies to which he would have been entitled were set forth in section 2-711 (Ill. Rev. Stat. 1969, ch. 26, § 2-711), which is the only applicable section to which section 2-610(b) refers, according to the relevant portion of 2-711:
"(1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
(a) `cover' and have damages under the next section as to all the goods affected whether or not they have been ...