Neibert v. Schwenn Agri-Production Corp.

579 N.E.2d 389, 219 Ill. App. 3d 188, 161 Ill. Dec. 841, 16 U.C.C. Rep. Serv. 2d (West) 681, 1991 Ill. App. LEXIS 1600
CourtAppellate Court of Illinois
DecidedSeptember 12, 1991
Docket3-91-0039
StatusPublished
Cited by6 cases

This text of 579 N.E.2d 389 (Neibert v. Schwenn Agri-Production Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neibert v. Schwenn Agri-Production Corp., 579 N.E.2d 389, 219 Ill. App. 3d 188, 161 Ill. Dec. 841, 16 U.C.C. Rep. Serv. 2d (West) 681, 1991 Ill. App. LEXIS 1600 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Richard Neibert and Joyce Neibert, appeal from a judgment entered in favor of the defendant, Schwenn Agri-Production Corporation (the Corporation). We affirm in part, reverse in part and remand.

The record shows the Neiberts were tenant farmers in Newton County, Indiana. On February 8, 1986, the Neiberts entered into four separate contracts with the Corporation, which were each entitled “Production Agreement.” The contracts were identical except as to the land described and the landlord. The contracts provided that any litigation arising out of the agreements would be brought in the circuit court of Iroquois County and decided under Illinois law.

Under the the contracts, the Neiberts were to grow and harvest sunflowers on 612 acres. The Corporation was to supply the seed, pesticides and herbicides. After the harvest, the contracts required the Corporation to pick up the sunflower seed from the Neiberts’ storage facilities. The Corporation was to pick up all of the seed by October 30, 1986. The contracts provided the Neiberts would be paid 12$ per pound for all seeds over 17/64 of an inch in size.

Harvesting commenced in late August of 1986 and was completed around September 10. The record shows the first truckload of seed was picked up on September 4. After four loads had been picked up and delivered to the processing facilities, the Corporation made its first payment to the Neiberts. According to Joyce Neibert, the Neiberts received the first payment on September 18. They were surprised by the amount of small seed for which they did not receive any payment. They immediately called Steve Schwenn, president of the Corporation, to complain. They informed Schwenn they would not allow any more seed to be picked up until the problem was resolved. By this point a total of eight loads had been shipped.

On September 24, 1986, the Neiberts flew to Fargo, North Dakota, the headquarters of the Corporation. On the morning of September 25, 1986, the Neiberts met with Schwenn. A series of meetings took place over the course of the day on September 25 and on the morning of September 26, 1986. At the conclusion of the last meeting, the parties spoke with Robert Watts, the trucker, and informed him the dispute had been resolved and deliveries would resume.

The Neiberts testified the parties had agreed to amend the Production Agreements to pay the Neiberts 10$ per pound for the small seed. However, Schwenn testified he had agreed to review the financial aspects to see if it was economical to amend the contracts to pay for the small seed. He had agreed to pay for the small seed contained in the loads already delivered. He also paid the Neiberts for the small seed contained in the shipment picked up immediately after the meetings in Fargo.

A draft amendment was drawn up; however, on October 24, 1986, Schwenn informed the Neiberts by letter that he could not afford to pay them for the small seed, and that he would have to stick to the terms of the original contracts. Schwenn and his wife also placed a call to the Neiberts on Sunday, October 26, 1986. Sue Schwenn questioned the Neiberts about whether the Neiberts were calling other buyers for the seed. The Schwenns both testified that the Neiberts told them no more seed would be shipped. The Neiberts denied making such a statement.

In November and December of 1986 there were further contacts between the parties. The record makes reference to the Neiberts’ request, in November of 1986, for guarantees of payment. The Corporation picked up a portion of the remaining seed during the period from December of 1986 to February of 1987. According to the evidence presented at trial, approximately 472,600 pounds of seed were sold to other buyers or used as livestock feed by the Neiberts.

On March 19, 1987 the Neiberts brought an action for breach of contract against the Corporation, and the Corporation filed a counterclaim also alleging breach of contract. Following a bench trial and a hearing on damages, the trial court entered judgment for the Corporation on the counterclaim. Regarding the conflicting evidence, the trial court found the Corporation’s version of events to be more credible. The trial court awarded the Corporation damages in the amount of $22,450.23. The Neiberts appealed.

On appeal, the Neiberts contend the trial court erred in finding they breached the contracts, and in finding the contracts were not modified following the meeting in Fargo.

The issue as to which party breached the contract is a question presented to the trier of fact, and its finding will not be disturbed unless it is contrary to the manifest weight of the evidence. (F.E. Holmes & Son Construction Co. v. Gualdoni Electric Service, Inc. (1982), 105 Ill. App. 3d 1135, 435 N.E.2d 724.) The trial judge, as the trier of fact, is in a position superior to a court of review to observe the demeanor of witnesses while testifying, to judge their credibility and to determine the weight their testimony should receive. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) Consequently, where the testimony is conflicting in a bench trial, the court’s findings will not be disturbed unless they are against the manifest weight of the evidence. In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 546 N.E.2d 506.

In the instant case, the testimony regarding the statements and actions of the parties during the autumn of 1986 was contradictory. On review of the record, we cannot say the trial court’s finding that the Neiberts breached the Agreements was against the manifest weight of the evidence. The record supports the trial court’s finding that the Neiberts’ actions surrounding their attempt to reform the Agreements “contributed significantly” to the failure of the Corporation to pick up the seed within the time specified in the Agreements.

In addition, we cannot say the trial court erred in finding the Agreements were not modified following the Fargo meeting. The trial court found Steve Schwenn’s version of events more credible. Given the conflicting testimony as to what was agreed to at the Fargo meeting, it was within the province of the trial court to determine which testimony it found most credible. We note that amendments to the Agreements were required to be in writing and signed by both parties. No written amendment was ever entered into by the parties, although a draft was prepared. In sum, the trial court’s findings that the Neiberts breached the Production Agreements and that the Agreements were not modified were not against the manifest weight of the evidence.

The Neiberts also contend the trial court erred in assessing damages. The trial court found the Corporation’s argument concerning damages was supported by the record, and adopted the Corporation’s calculation of damages with some modifications.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
579 N.E.2d 389, 219 Ill. App. 3d 188, 161 Ill. Dec. 841, 16 U.C.C. Rep. Serv. 2d (West) 681, 1991 Ill. App. LEXIS 1600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neibert-v-schwenn-agri-production-corp-illappct-1991.