BEFORE ROY NOBLE LEE, PRATHER and ZUCCARO
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Dennis Gooch appeals from a judgment entered in the Chancery Court of Pontotoc County in favor of Farmers Marketing Association in the sum of ten thousand six hundred dollars ($10,600), together with interest and costs. Appellant assigns three errors in the trial below, which follow:
THE COURT ERRED IN HOLDING THAT THE CONTRACT WAS ENFORCEABLE, I.E., IN OVERRULING THE PLAINTIFF'S, DENNIS GOOCH, APPELLANT HERE, MOTION FOR SUMMARY JUDGMENT.
THE LOWER COURT ERRED IN HOLDING THAT THE ALLEGED ORAL BOOKING CONTRACT, TELEPHONICALLY MADE, WAS NOT TELEPHONICALLY CANCELLED.
THE LOWER COURT ERRED IN HOLDING THAT THE MEASURE OF DAMAGES WAS TWO AND 12/100THS ($2.12) DOLLARS PER BUSHEL RATHER THAN NINETY-NINE (.99) CENTS PER BUSHEL.
Appellee, Farmers Marketing Association (FMA), is a cooperative association in Pontotoc County engaged in the purchase and resale of soybeans, wheat, and milo. Appellant is a Pontotoc County farmer, has been a member of FMA since the 1970s, and has sold his produce to FMA on several occasions.
Sometime prior to February 14, 1983, appellant informed FMA's bookkeeper, Hampton, of his desire to book soybeans should the market price rise to $6.00 per bushel." Booking "is an agreement whereby a farmer, e.g., appellant,
contracts with FMA for future delivery of grain, usually produced by the farmer, and which obligates the farmer to deliver the amount booked. Booking may be done by a visit to the FMA office or by telephone. A booking contract is signed by the farmer when he books in person, but there is no signature where a booking is made by telephone. Generally, the contracts for telephoned bookings are signed later by the farmer, if he stops by the FMA office. Approximately ten percent (10%) of the telephoned contracts booked are never signed, but are performed nevertheless. FMA, as a general rule, immediately executes a futures contract to resell the booked produce to a larger purchaser.
In early February, bookkeeper Hampton telephoned appellant and advised him that soybeans were near the $6.00 per bushel mark. Appellant told Hampton to book 5,000 bushels of soybeans at $6.01 per bushel for October/November/December, 1983. Hampton filled out a" Contract for Future Delivery of Commodities "reciting these terms and dated it February 14, 1983. During the same telephone conversation, appellant also booked 3,000 bushels of wheat. The wheat was booked as two contracts, one dated February 10, and the other dated February 11. Appellant later signed the wheat contracts, but the soybean contract was never signed.
Appellant performed on the wheat contracts by the required July delivery date, but by late November there had been no performance on the soybean booking. On November 23, 1983, the president of FMA informed appellant by letter that, if performance was not had by December 31, 1983, then FMA would take legal action. Appellant had already sold his soybean crop to another buyer. When he failed to perform the contract by December 31, FMA covered the deficiency by purchasing 5,000 bushels of soybeans at $8.13 per bushel, which was $2.12 over the booking price on February 14, and which amounted to an overage of $10,600.00. Appellant denied the existence of the soybean contract, and on January 19, 1984, sued to enjoin FMA from enforcing or collecting on the contract. FMA counterclaimed for damages of $10,600, interest and costs.
Appellant's pretrial motion for summary judgment was denied. Subsequently, both parties joined in a motion to withdraw the request for injunction, and the case proceeded to trial on FMA's counterclaim alone. At trial, appellant admitted booking the soybeans by telephone in February, and he testified that in July, 1983, he contacted FMA to determine the status of his February soybean booking. He asked the FMA manager whether he had a contract, and the manager asked appellant" Do you want out? "Appellant replied," Yes, "and
the manager said," O.K. "
The FMA manager testified that at no time did appellant express a desire to cancel the soybean booking and that appellant had performed unsigned contracts in the past. The FMA bookkeeper testified that in July appellant inquired as to how much it would cost to get out of his soybean contract; and when appellant discovered that it would take $5,000 to cancel," [h]e just left it at that. "
The chancellor found that the February telephone booking constituted a contract; that appellant was aware of the contract, inquired about what it would cost to get out on one occasion, but did not actually attempt by telephone, letter or otherwise to void the contract, even though he was in the FMA office on several occasions; that appellant had dealt with FMA for several years and that he had previously delivered on unsigned ...