Zolman v. SEMO Produce, Inc.

875 S.W.2d 605, 1994 Mo. App. LEXIS 760, 1994 WL 169760
CourtMissouri Court of Appeals
DecidedMay 5, 1994
DocketNo. 18889
StatusPublished
Cited by3 cases

This text of 875 S.W.2d 605 (Zolman v. SEMO Produce, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zolman v. SEMO Produce, Inc., 875 S.W.2d 605, 1994 Mo. App. LEXIS 760, 1994 WL 169760 (Mo. Ct. App. 1994).

Opinion

PARRISH, Chief Judge.

Richard Zolman and Lyman Zolman (plaintiffs) appeal a judgment against SEMO Produce, Inc., (SEMO) for breach of an oral contract. This court affirms.

This case was tried without a jury. Its review is governed by Rule 73.01.

The decree of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

Compton v. Cain, 829 S.W.2d 75, 76 (Mo.App.1992). There was no request for findings of fact or conclusions of law and the trial court made none. Accordingly, this court considers all fact issues as being resolved in accordance with the result reached. Rule 73.01(a)(3). “[Tjhis court accepts as true the evidence and permissible inferences favorable to the judgment and disregards contra[607]*607dictory evidence.” Luna v. Smith, 861 S.W.2d 775, 780 (Mo.App.1993).

Plaintiffs are partners in a farming operation. They have grown watermelons since 1980. SEMO is a produce broker. During the summer season, SEMO’s primary business is selling watermelons. It has engaged in that business since 1978. During the summer of 1992, and for several seasons prior to 1992, plaintiffs sold the watermelons they raised through SEMO. They had no written contract. Their business dealings were based on oral agreements.

In 1992 when plaintiffs’ first crop of watermelons was ready for sale, Lyman Zolman called Bud Henderson, president of SEMO. Mr. Zolman explained:

Q. [by Mr. Zolman’s attorney] What was that conversation?
A. I just called him up and just asked him if he was buying any watermelon, and he said yes. I asked him how much he was paying, and he said three cents a pound.
Q. You called him on the telephone, and you contacted him at his place of business?
A. Yes, ma’am.
Q. And, again, the price was how much?
A. Three cents.
Q. Okay. Do you remember the approximate date of that conversation?
A. Not really. It was probably a day that — The day the first load was loaded, I imagine.
Q. Was it before any melons were loaded?
A. Yes, ma’am.

When plaintiffs sold watermelons through SEMO’s brokerage, SEMO provided a truck and a stacker. Plaintiffs provided a crew and equipment for removing the watermelons from the field. The crew hauled the watermelons from the field on a trailer. The crew handed the watermelons from the trailer used to bring them from the field to the stacker on the truck. The stacker placed the watermelons on the truck.

SEMO sold watermelons throughout the northern section of the United States. From July 16, 1992, through August 16, 1992, SEMO took 23 loads of watermelons from plaintiffs’ fields and delivered them to buyers.

On July 28,1992, SEMO began paying two and one-half cents per pound. Plaintiffs claim they were not advised that the price had dropped from three cents per pound and they did not agree to the lesser price. On an occasion prior to when SEMO began paying two and one-half cents per pound for watermelons, Lyman Zolman heard rumors that the price of watermelons was dropping. He called Bud Henderson and inquired. At that time, Mr. Henderson told Mr. Zolman that SEMO was paying three cents per pound. Mr. Zolman did not recall the date of his telephone conversation with Bud Henderson; however, his recollection was that the telephone conversation occurred at a time “close to” the date when SEMO began paying two and one-half cents per pound.

Bud Henderson recalled Lyman Zolman calling from a cafe at Arbyrd, Missouri, “about two days before [the price] had dropped.” Mr. Henderson testified that the day Mr. Zolman called from the cafe, a load of watermelons was being loaded from plaintiffs’ fields; that his conversation was about that load of watermelons. Mr. Henderson told Mr. Zolman, “Lyman, as far as I know, we got this one here sold on the three.” He explained, “That did not mean that it would be three cents for the remainder, you know, of the season.”

Bud Henderson testified that SEMO had never contracted with plaintiffs for a specific price at the start of a growing season that extended to all watermelons purchased that year. Usually, the price of watermelons declines toward the end of the summer.

When SEMO takes a load of watermelons from a farmer’s field it assigns a load number. SEMO maintains records for each load number. “It’s got a load number. It’s on a master book at Semo. It’s got the farmer, the crew what did load it, the trucker, the trucker driver’s — the license number of the truck and the trailer, where it went.” When SEMO receives a check paying for a load of [608]*608watermelons, a copy of the check is placed in the file. SEMO’s commission is “a penny a pound.” Bud Henderson explained:

Q. [by SEMO’s attorney] Let me ask you this. Had the price, at the end of the season, for some reason, gone to three and a half cents, then would Mr. Zolman have received additional profit for his melons?
A. Very definitely.
Q. All right. And you would not, I under — As I understand, you would have paid whatever the market price was; and that would have cost you, then, three and a half cents had the price gone up to three and a half rather than gone down to two and a half?
A. Right_
Q. But what I’m stating is, your margin of profit would basically have been the one cent margin that you’ve—
A. Right. Right.
Q. —explained whether the price had gone down to one and a half cents or gone up to three and a half cents; is that correct?
A. That is correct.
Q. All right. You’re not a speculator?
A. We’re not a speculator to a big degree.
Q. All right. And in your past dealings with Mr. Zolman, you’ve never been a speculator; it that correct?
A. Never been a speculator.

Bud Henderson explained that some loads of watermelons are rejected by buyers upon delivery; that their quality upon delivery may not be acceptable to a buyer. He explained what occurs when he is notified that a load of watermelons has been rejected:

I’ve got two options. Let’s get a federal [inspection] on it, and I do. And if they don’t pass the federal, well, I’ve got — My first reaction is to get the company there that they’re at to work them — say, please unload them, take them out, do the best you can with them, sort out the bad ones; but try to help me because I don’t want to put more freight and take another day delay on the truck.

Mr. Henderson was asked the following questions and gave the following answers:

Q. [by plaintiffs’ attorney] Are you telling me, Mr.

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

Related

Nelson v. Nelson
937 S.W.2d 753 (Missouri Court of Appeals, 1997)
Thompson v. St. John
915 S.W.2d 350 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
875 S.W.2d 605, 1994 Mo. App. LEXIS 760, 1994 WL 169760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zolman-v-semo-produce-inc-moctapp-1994.