Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois No. 97--L--5 Honorable Scott Madson, Judge Presiding
The opinion of the court was delivered by: Presiding Justice Holdridge
Plaintiff, an agricultural cooperative, appeals from an order of the circuit court of Bureau County granting defendant farmers' motion pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)) seeking involuntary dismissal of plaintiffs complaint for breach of certain oral contracts to deliver grain. The trial court granted defendants' motion pursuant to the statute of frauds provision of the Uniform Commercial Code (UCC)(810 ILCS 5/2-201 (West 1996)). Plaintiff then filed a motion to for leave to amend its complaint, which the trial court denied. Plaintiff now appeals both orders. For the following reasons, we affirm the order dismissing the complaint, but we reverse and remand the denial of plaintiffs motion for leave to amend its complaint.
Bureau Service Company (BSC), is an Illinois cooperative association engaged in the buying and selling of grain. Defendant, Jerry King, farmed on his own and as a tenant of defendant Bill Lange. King is Lange's son-in-law. The record established that the parties had been doing business with each other prior to the controversy at issue for a period of approximately ten years. BSC customarily sold fertilizer and chemicals to King and Lange, and approximately half of their total crop production was sold to BSC. Most of these transactions were accomplished on a verbal basis.
BSC filed a single count complaint against King and Lange seeking recovery of damages for an alleged breach of two oral contracts entered into by King on behalf of himself and Lange for the delivery of grain to BSC. In its complaint, BSC alleged that on or about September 29, 1995, King entered into two oral contracts with BSC whereby both defendants agreed to sell to BSC a total of 15,000 bushels of Number 2 yellow corn at a price of $3.19 per bushel. The contracts allegedly called for delivery in June 1996, with 5,000 bushels to be delivered by both King and Lange and 10,000 bushels to be delivered by King.
BSC's complaint further alleged that on October 5, 1995, King again entered into two oral contracts with BSC whereby both defendants agreed to sell to BSC a total of 15,000 bushels of Number 2 yellow corn at a price of $3.16 per bushel. As in the previous contract, delivery was to be in June 1996, with 5,000 bushels to be delivered by King and Lange, and 10,000 bushels to be delivered by King.
Also alleged in BSC's complaint was that all four oral contracts provided defendants with an option to defer delivery until December 1996. If defendants exercised this right to defer delivery on any of the four contracts, the price to be paid would be the original contract price minus the difference between the July and December corn futures contracts on the Chicago Board of Trade as of the date of the election.
BSC alleged that on or about May 15, 1996, King exercised the option to defer delivery of 15,000 bushels. However, no delivery was ever made, and this cause of action was filed. In response, defendants filed a motion to dismiss in which they interposed a defense based upon the Statute of Frauds (735 ILCS 5/2-201 (West 1996)), asserting that the alleged contracts were unenforceable due to lack of a written instrument.
In response to defendants' motion, BSC filed an affidavit given by its marketing manager, Doug Schwartzkopf, in which he stated that he dispatched to King four written confirmatory memoranda with respect to the September 29, 1995 and October 5, 1995 oral agreements. Copies of those documents were attached to the affidavit. The affidavit is silent as to the date the documents were allegedly dispatched. Reference was made in the affidavit, however, to three other written confirmatory memoranda allegedly memorializing King's May 15, 1996, agreement to deliver 15,000 bushels of corn in December 1996. Those three memoranda were dated May 28, 1996, and BSC subsequently acknowledged that all seven documents were dispatched at the same time. The record indicates that King received the memoranda, but no written notice of objection to any of the seven documents was ever dispatched to BSC.
The trial court granted defendants' motion for involuntary dismissal, finding that the Statute of Frauds barred plaintiff's cause of action. In so ruling, the trial court specifically found that the four confirmatory memoranda sent May 28, 1996, were not sent within a reasonable time after the alleged oral agreement. BSC appeals.
We review de novo the granting of a motion for involuntary dismissal pursuant to section 2-619. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116 (1993). The standard in such matters is similar to the one applicable to a motion for summary judgment, and we will consider the pleadings, affidavits, and depositions when reviewing a ruling on such a motion. Zedella v. Gibson, 165 Ill.2d 181, 185 (1995).
The UCC governs this transaction, as all parties were engaged in grain merchandising. Sierens v. Clausen, 60 Ill.2d 585 (1975). Section 2-201(1) of the UCC provides that:
"a contract for the sale of goods for the price of $500.00 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker." 810 ILCS 5/2-201(1) (West 1996). The UCC also provides that:
"Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to note its content, it satisfies the requirement of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received." 810 ILCS 5/2-201(2) (West 1996).
Here, there is no dispute that the alleged oral contracts occurred on September 29, 1995 and October 5, 1995 and that the alleged confirmatory memoranda were sent on May 28, 1996. The question before us is whether the passage of some eight months between the oral agreement and the ...