*2 20,000 immediately purchased bushels of RUBIN, Before WILLIAMS, GARZA and soybeans on the Chicago Board of Trade Judges. Circuit after he finished speaking with Smith order to make certain that the plaintiff PER CURIAM: would be able to deliver beans to its cus- In of January 1980, 1980 and of July J.B. tomers.- The defendants claimed that Brown and defendants, Michael the merely Smith informed Cox that they had executed two contracts for the delivery of completed their harvesting and that they soybeans to Louis Dreyfus Corporation, the would “settle up” plaintiff the on the plaintiff. The first contract called for the date of delivery. cross-examination, On 20,000 delivery of soybeans bushels of however, at when defendant Smith was con- bushel, per while $7.15 the second contract fronted with an earlier statement made 10,000 called for the delivery of bushels of during deposition his in which he testified soybeans at per $7.54 bushel. After execu- that he had said that the defendants would ting defendants, the contracts with “pay-up,” “Well, the the replied, Smith I must have plaintiff contracted to resell the did if soybeans to that’s what I light said.” In of [sic] third parties. Growing adoption Smith’s statement, conditions were of his earlier poor during the there was no drought dispute 1980 season. A factual concerning what was said on during the summer was December 8th.1 by heavy followed rainfall which damaged large portion of plaintiff The brought this diversity action soybean crop. The plaintiff was aware against the defendants to recover the losses of the farmers’ difficulties and on Novem- it sustained by having buy soybeans 26, 1980, merchant, Cox, ber its grain Ron December to cover the shortage on the con- sent a letter to the defendants extending tracts, $21,656.00. an totaling amount The delivery 12, time until December 1980. defendants liability denied on the basis of two (1) affirmative defenses: poor that 8, On December defendant Smith called performance weather conditions made im- Cox. The center of controversy in this case 2 (2) that possible plaintiff had re- is the content and effect of this conversa- accept delivery fused to of the soybeans. tion. Cox testified at trial that in- Smith counterclaimed, They also alleging that the formed him that the defendants har- had $6,812.00 plaintiff owed them for the beans vested all of the soybeans and they that refused, had that amount represent- were ready “pay up.” At that time none ing the difference between the market price parties of the knew the exact of the amount at the time of and the contract delivery underfill on the contracts because a number price. of by bushels owned the defendants were being cleaned in trial, order to meet At the district court granted a di- known, tracts’ quality standards. It was rected verdict in favor on however, counterclaim, defendants were over judg- defendants’ and a twenty verdict, thousand bushels short their con- ment also for tract. plaintiff, after the found in the accept tract, prepared 1. Even if we defendants’ contention that the defendants were to finan- up,” gist cially plaintiff. Smith told Cox would “settle settle with the Looking of the conversation is the same. leading up the facts to the conversation and the subsequently 2. The defendants conceded that phrase context in which defendants claim the poor weather conditions would not have ex- used, up” only “settle inter- reasonable performance cused their of the See contract. pretation dialogue Rooker, of the is due to their Ralston Purina Co. v. 346 So.2d 901 obligations failure to meet (Miss. 1977). their under the con- 900 Ass’n appeal-

defendants’ favor. The defendants unconditional.” Old Ladies Home Hall, (1951). 655 actions, Miss. So.2d judge’s ed both as well as the trial jury instruction. give requested failure to ques concedes that the The grounds plaintiff cross-appealed on the tion, anticipatory repudiation whether an alleged abuse of the district court’s occurred, normally has a factual issue to rul- concerning evidentiary discretion two jury, but it maintains *3 by be determined new trial. ings entitled to a conditional a provided that the defendants in this case intention clear indication that had no proprie first look at the We shall agree the contracts. We performing of granting judg of the district court’s of a ty and plaintiff with the and the district court jury ment the verdict. A law, Mississippi conclude under unless, after verdict should not be disturbed an anticipa statement constituted Smith’s just of the viewing “all evidence —not Ltd. v. tory repudiation. See Wander evidence the non-mover’s supports which Krouse, (Miss.1979). 235 The con 368 So.2d all light case —... the and with reasona only text of this statement makes this the party inferences most favorable to the ble A re interpretation. contrary reasonable motion,” opposed to the the court is able penalize plaintiff the for cover sult would conclude that “reasonable men could not 8, on December and under the circum ing Boeing Co. contrary arrive at verdict.”3 stances, unjustifiable. this would be 365, Cir.1969) Shipman, (5th v. 411 F.2d 374 governing the standard review Since (en banc). Motor Toyota See Dalton judgments of directed verdicts and n.o.v. Sales, Inc., 137, Cir.1983). (5th 703 F.2d 140 same, Boeing Shipman, supra, the Co. v. we record, the we conclude reviewing After the court’s decision to also affirm district that this is such a case. a directed verdict in favor of the grant issue parties All concede that the central the defendants’ counterclaim. plaintiff on is whether the December 8 conversa- contract, the repudiated Once the seller had anticipatory repudiation tion constituted an delivery to refuse buyer the was authorized Ann. of the contracts under Miss.Code the as to which portion soybeans of the (1972).4 Mississippi 75-2-610 The Code § the contract. repudiated the seller had repudiation, define anticipatory does not (1972). 75-2-711(1) Ann. Miss.Code § accompanying but the official comments argue that Finally, the defendants explain Code Uniform Commercial damaged it was prove did not upon centers [ajnticipatory repudiation disagree. After an the transaction. We by of intention or an overt communication occurred, an repudiation has anticipatory performance an action which renders im- may damages recover aris aggrieved buyer a clear possible or demonstrates determi- “covering” pur cost of his ing out of the performance. nation not to continue with Ann. 75-2-712 chase under Miss.Code § 1, (1962). damages by 2-610 comment Similar- measured differ (1972), U.C.C. or § market at the time required price law an “between the ly, pre Mississippi code ence learned of the breach and buyer to be anticipatory repudiation “positive substantially impair will 3. Both the district court and the defendants loss of which other, Mississippi discussing ag- have relied on law of the contract to the value judgment See may standard of review of a n.o.v. grieved party Darnell, General Tire & Rubber Co. v. 221 (a) commercially for a reasonable federal, 1969). (Miss. So.2d 104 The rather by par- performance repudiating await test, diversity applies in cases. than the state ty; or Boeing Shipman, supra, at 368-370. Co. v. (b) any remedy resort for breach [Sec- 75-2-703 tion 2-703 or Section 2-711] [§§ statute, Mississippi modeled 4. The which was 75-2-711], though he has notified or even after section 2-610 of the Uniform Commercial repudiating party await that he would Code, part: provides in relevant urged performance re- and has the latter’s party repudiates When either the contract traction .... yet respect performance not due the with to a the contract price .. . under Miss.Code however, testified that he did not 75-2-713(1). case, Ann. In plain- this § repudiate the contract in that conversation. cover; tiff chose to therefore, damages Although he testified that he stated their be by must measured the “difference be- delivery short, would be he also testified tween cost of cover and the contract agreed that he to meet sever- ” price .... 75-2-712(2). Miss.Code Ann. § days al later to settle the contract. He Uncontradicted evidence trial estab- considered the conversation merely prel- plaintiff’s lished that agent, Cox, paid Although ude. he did make damaging ad- per 20,000 bushel for $8.34V2 bushels of soy- missions on cross-examination, beans December per bushel $7.84 entitled to credit the account of the conver- for the remainder purchased on December sation he gave on direct examination. defendants, therefore, were entitled to recover the difference price between the Boeing Co. v. Shipman, 411 F.2d paid by Cox and the price. contract Conse- *4 (5th Cir.1969) (en banc), requires that we quently, district entry court’s of a judg- consider both the evidence and all reasona- $23,821.60, ment for the which for ble inferences may be drawn from it in $21,656.00 included as the difference be- the manner most favorable to the party tween cost of cover and the contract with whom agreed, the jury us, and forbids price, plus interest, was proper. as does, the majority to adopt the version It is not for necessary us to address plain- most favorable to the party whom the fact cross-appeal tiff’s or challenge defendants’ finder did not credit. In the appendix, I set to instruction since we find the forth excerpts from Smith’s testimony that district court was in a granting correct seem to me sufficient to sustain the jury’s judgment verdict in verdict. favor of the plaintiff its on claim and a directed verdict in favor of the

the defendants’ Consequent- counterclaim. APPENDIX ly, judgment of the district court witness is affirmed. Michael on direct examination. Transcript pp. 82-84. AFFIRMED. Q. Tell us then on December 8th what RUBIN, B. Judge, ALVIN Circuit dis- happened in a relationship your to senting. conversation with Mr. Cox and how I cannot agree that there was no factual you produced on your contract. dispute concerning December telephone conversation between Smith A. I him called and told him that agree Cox. Nor can I if accept we we’d cutting finished our beans and conversation, version of defendants’ its date, up know, wanted to a you set “gist” is the same. was a factual There go that we could get down and concerning conversation, dispute it was and, know, him you up settle our material and its was an issue for resolution contract, at which time he told me jury. reasons, For these I respectfully that all of our beans hadn’t come from the majority’s dissent conclusion that from Gulf Grain. And at that judge the district properly granted plaintiff he said he didn’t know and he would judgment notwithstanding verdict. back in touch with me when The case turns on when defendants come in and could get did we down. breached the contract. The con- majority just And he did. As soon he never as during cludes that this the De- happened it, hung up he was phone burning 8th cember conversation because Smith I reckon. positively repudi- then and unconditionally Q. ated the contract. Pardon?

Q. Did know how much was over at you cleaned? then to be Gulf Grain A. I hung up said as soon as he were three loads. phone he was A. There burning trying to them, sell I reckon. truckloads? Q. Three Q. Did he ever call and tell you you Yes, A. sir. that? at Q. thousand bushels couple So No, A. sir. most? Q. you Did he tell on December 8th that Yes, A. sir. going purchase he was beans for Q. Twenty-five hundred bushels Dreyfus your Louis to fulfill most? tract? Yes, A. sir. No, sir,

A. he didn’t. Q. else? you anything Did discuss Q. you When is the first time that knew No, A. sir. that he had done that? Q. you stating Do recall A. On the 12th of December. Mr. wanted you conversation to Cox He ifc Hs ^[*] sfc sfc pay up? A. I that. say didn’t Q. right, All sir. Did authorize him Q. You never said that? purchase to sell or beans to supply No, sir. your contract on December 8th?

On cross examination. 106. A. A. Q. Have Q. He to purchase 8th. about that And let me talk with you very tract at No, No, sir. sir. you ^[*] any phone beans to fulfill ^[*] any time? Transcript pp. conversation on the He authorized him ^[*] your briefly H* 104- A. A. Q. Very short? A. Q. Q. your deliveries? convey wanted to Now When thing Yes, Yes, I and settle said sir. sir. you in. you that we would knew pay up called did message him? you to him they got every- were short on you *5 intend to together you testimony you now that Q. your But it’s A. Go ahead. up? to pay never said wanted you it, Q. That was wasn’t that called you, sir, No, say I never did that. A. Mr. Cox? absolutely said that? You’re Q. Never Yes, A. sir. about that? certain Q. morning? And that in the early was Yes, A. sir. Yes, A. sir. A. Q. At 7:45 A.M. Trade Yes, prices sir. opened on the for the In fact it was before Chicago day? Board of tiff’s counsel osition. Continuing the cross ^[*] Transcript p. ^[*] questions H< 106. Smith examination, plain- ^[*] about his ^[*] '(cid:127)¥ dep- Q. finished cut- you you’d asking you And told him Q. you my Do remember beans,

ting is that correct? conversa- back then about tion? Yes, A. sir. Yes, A. sir.

Q. you What else did tell him? that time? Q. was answer at your What A. We had a—we talked about I said thing it was the same beans were over at Grain A. I reckon Gulf now. everything. Q. You didn’t say then wanted to you UNITED America, STATES of pay up, is that correct? Plaintiff-Appellee, A. I I believe said up.” “settle sjs ¡ft sjc sfs sft SIMPSON, William C. The deposition is handed to Plain- Smith. Defendant-Appellant. tiffs counsel asks some preliminary ques- No. 82-1275. tions. Then the questioning continues. Transcript p. 107. United States Court of Appeals, Q. All right. The next question I asked Fifth Circuit. was: “What your was purpose in

calling him?” Now this was back on June October, 2nd day 1981, this 31, 1983. Certiorari Denied Oct. was in my office, down and your See 104 S.Ct. 360. answer at that time was the follow- ing: called “I him going

see if we could settle our contract. was, know,

We going to pay up.

He told me he didn’t have all the

beans in and stuff and wait three or

four days and he’d call me back.”

Now your is it testimony today you

didn’t tell him you were going pay

up? I must have did if that’s what I

said.

Sfc if! ^[*] !f! Sfc Sj! redirect,

On Transcript p. Smith testi-

fied:

Q. You were asked on cross examina-

tion, particularly from Pages 20 and

21 of the deposition, having about

told Mr. Cox that you would come

down or either would come

down pay up. Tell the Jury

what you meant when you said that

to Mr. Cox.

A. What I meant when I said it?

Q. Yes, sir. he was going call me back all our got stuff in from Grains,

Gulf all of our beans and in,

everything was we were go-

ing together pay and either

him or him pay us what the differ-

ence was on our contracts that we

were on. short