Nature of the Case
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Facts
Baker (P) agreed to buy a crop of popcorn from Ratzlaff (D). P was to supply the seed popcorn at the stated price. Payment for the crop was supposed to be C.O.D. as per the written contract. D made delivery of the first shipments on February 2nd and did not ask for payment. A second truckload was delivered 2 days later, and again no payment was received, but none was asked for. During the week of February 4, Martin telephoned defendant and asked when further deliveries would be made. Later that same week, plaintiff telephoned defendant and asked about the delay. Defendant told Martin and plaintiff that he was having equipment problems and that Boucher had been ill. In neither of the telephone conversations was there any discussion of payment. A week later D sent a written notice of termination of the contract claiming that P had breached the contract by failing to pay on delivery as required by paragraphs 12 and 13. Upon receipt of the notice of termination on or within a few days following February 12, P sent checks for the two loads that had been delivered. D entered into a contract with a third party for the sale of the balance of the 1973 popcorn at a price of $8.00 per hundredweight instead of the $4.75 per hundredweight with P. This contract was performed by D's delivery of 1,600,000 pounds of popcorn. P testified that he had to pay $10.30 for some replacement popcorn. The trial court awarded damages of $52,000. This amount represents the value of 1,600,000 pounds at 3.25 per hundredweight, the difference between the parties' contract price of $4.75 and an $8.00 price. P and D appealed.
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