Phillip Eugene Wendling, Appellee, v. Ted Puls and George Watson, Defendants-Appellants No. 50,522
UNITED STATES SUPREME COURT OF KANSAS
227 Kan. 780; 610 P. 2d 580; 1980 Kan. LEXIS 280; 28 U.C.C. Rep. Serv. (Callaghan) 1362 May 10, 1980, Opinion Filed
The Procedural History:
Phillip Eugene Wendling, a Harvey County farmer and stockman, told Ted Puls, an active cattle buyer, in July of 1973 that he might have some cattle for sale around the middle of that August. Puls indeed asked Wendling to call him when he decided to sell his cattle. On the 13th of August, 1973, Wendling informed Puls that he had 103 head of cattle for sale. Puls in turn contacted George Watson, a veterinarian, for financial assistance on the purchase of the cattle. After an inspection of the cattle by Puls and Watson, the three individuals negotiated a price of 61 cents per pound for 98 head and 59 cents per pound for the other 5 head. After officially weighing the cattle on August 16th, on Pul’s trucks (with 3% off for shrinkage), Pul gave Wendling a check for $1000.00 as a down payment for the 103 cattle noted on the check. Wendling deposited the check on August 20th. On August 23rd Wendling penned the cattle in preparation for delivery, but neither Puls or Watson showed, sent trucks to pick up the cattle nor called. Wendling tried to call Puls, but was informed that Puls was “putting up hay”. Then Wendling called Watson, who said that he didn’t know why delivery hadn’t been taken and that he would talk with Puls. Then on August 27, 1973, Wendling finally reached Puls by phone and demanded an explanation. Puls claimed that he had been trying to find a location to put the cattle. Wendling requested additional down payment and Puls refused. Puls then suggested that Wendling should maybe sell the cattle to someone else. Wendling stated that he needed a written release before he was free to negotiate another sale. Puls did not resond to the requirement. On August 28th, 1973, Wendling sought and was given the legal advice to acquire the written release from Puls and Watson before re-selling the cattle. When Wendling attempted to locate Puls and Watson, he was only successful in finding Watson. Wendling requested that Puls and Watson meet up with him at his lawyer’s office to take care of the release form. Neither Watson or Puls showed up to the lawyer’s office and Wendling was left without resolution or an understanding of what Puls and Watson were intending to do from that point.
Puls and Watson were sent a notice stipulating the details of the sale by Wendling on September 11th, 1973 which neither man responded to. Wendling ended up selling the cattle in two separate lots on October 18th and November 1st of 1973. The trial court found that the statue of frauds was met in the case because the parties all admitted through court testimony that there was an agreement, including the terms and conditions. Although the court found that time was not of the essence in the contract sale between parties; the date of September 21st, which was when Wendling re-weighed the cattle and asked qualified livestock dealers to bid on the 103 head of cattle, is a proper date upon which to measure plaintiff’s damages for breach of contract. The trial court stated that Wendling would be able to use the $1000.00 down payment to go toward those damages. Facts of the case presented:
Puls and later Watson, displayed an interest in purchasing Wendling’s 103 head of cattle. Puls wrote a check to Wendling for $1000.00 which noted 103 head of cattle. After a $1000.00 down payment, Puls and Watson did not pick up the 103 head of cattle. Puls could not be found for a significant time and Watson, stating that he did not know why delivery hadn’t been taken and that he would talk with Puls. Puls and later Watson denied requests from Wendling for a written release form so that he could resell the cattle, once in person with Puls and later...