Opinion
Opinion Superseded, see 395 N.E.2d 257.
Page 1063
Paul E. Reed, Knox, B. Patrick Maloy, North Judson, for appellants.
Thomas B. Dumas, Rensselaer, Edward L. Volk, John E. Newby, Newby, Lewis, Kaminskis&sJones, La Porte, for appellees.
HOFFMAN, Judge.
The four plaintiffs-appellees operated grain elevators. As a regular part of their business they executed contracts with local farmers for the purchase of grain to be grown by said farmers and delivered to appellees Grain Companies at some specified time in the future. Defendants-appellants (the Gumzes) are farmers who till in excess of 4,000 acres. Arthur Gumz, father of Frederick and Paul Gumz and the owner of the farm, runs the farm as a sole proprietorship. Frederick and Paul were basically employees of Arthur Gumz, although they both planted several hundred acres for themselves. During the years 1972-1973 the Gumzes executed the 25 contracts involved herein, 23 of which were signed by or on behalf of Arthur Gumz, one of which was signed by Frederick Gumz in his own behalf, and one of which was signed by Paul Gumz in his own behalf. The four appellees brought this suit jointly against the appellants Gumzes alleging a conspiracy on the part of the Gumzes to defraud the Grain Companies by contracting to sell more grain than they could produce, intending to fill only those contracts which were profitable (contract price greater than market price) and to breach those contracts which were unprofitable (market price higher than contract price). The Grain Companies sued for damages due to the breach of their individual contracts with the Gumzes, claiming actual and consequential damages.
The parties each filed a motion for summary judgment and requests for admissions and responses thereto, depositions and affidavits in support thereof. The trial court rendered judgment in favor of the Grain Companies on each of their individual contracts with the Gumzes.
The Gumzes appeal arguing that the trial court erred when it (1) denied their motion to separate the causes of action, (2) failed to publish or read the sealed depositions, (3) found that the 25 signed documents constituted valid contracts, (4) found that there was no issue of fact as to the damages, and (5) failed to find that there was an issue of fact as to whether the Grain Companies had paid or credited the Gumzes for deliveries of grain to the Grain Companies.
Indiana Rules of Trial Procedure, Trial Rule 56(C) sets out the standard by which the trial court is guided in ruling on a motion for summary judgment:
". . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ."
The burden is on the proponent of summary judgment to demonstrate the absence of any genuine issue as to a material fact. All doubts and inferences are to be resolved in favor of the opponent of the summary judgment motion. Bassett v. Glock (1977), Ind.App., 368 N.E.2d 18, at 21.
Appellants argue that the trial court should have granted their motion to separate the causes of action for purposes of trial and for all other purposes. As there was no trial, appellants' motion will be discussed only in terms of the separation of the causes for purposes of the summary judgment motion.
The trial court denied the Gumzes' motion to separate on the basis of Ind. Rules of Procedure, Trial Rules 20(B) and 42(B). Gumzes argue that the Grain Companies should not have been permitted to join in one action because appellees did not meet the requirements of TR. 20(A): (1) that appellees assert a right to relief jointly, severally or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and (2) that a question of law or fact common to all the parties will arise in the action.
Appellants do not dispute that there are similar questions of law and fact common to all the parties. But Gumzes argue that there is no right to relief arising out of the same transaction, occurrence or series of transactions or occurrences. Appellants cited no Indiana cases in their brief on this issue and we could find none. Since the Indiana TR. 20(A) is patterned after Federal Rule 20(a), the authorities on the latter are helpful in construing our Indiana rule. Rembold Motors, Inc. v. Bonfield (1973), 155 Ind.App. 422, at 439, 293 N.E.2d 210, at 220. Trial Rule 20(A) is generally given the broadest possible reading since it is still possible to protect the convenience of the parties and the court by use of TR. 20(B) and 42(B) providing for separate trials.
A charge of conspiracy alleges a series of transactions related by a common purpose or intent and is usually sufficient to meet the requirements of TR. 20(A), permitting joinder of the claims arising from concerted action. Nassau Cty. Ass'n of Ins. Agts. Inc. v. Aetna Lifes&sCas. Co. (2nd Cir., 1974), 497 F.2d 1151, 1154. In Mesa Computer Utilities, Inc. v. Western Union Computer Utilities, Inc. (D.C.Del.1975), 67 F.R.D. 634, four plaintiffs sued on separate contracts with defendant alleging a conspiracy to defraud. The court at 637 held:
". . . (W)hile it is recognized . . . that plaintiffs' fraud and antitrust claims may eventually prove to have no factual or legal basis, it would be wholly premature to pass upon these arguments at this point in the litigation or in the context of the present motion."
Rule 20(a) does not require precise congruence of all factual and legal issues. Plaintiffs allege identical conspiratorial activity affecting each of them.
Wide discretion is vested in the trial court as to the joinder of parties. And in the case at hand it is not discernible how the asserted misjoinder was prejudicial to appellants. The relatively straightforward contracts and the absence of complicated facts or relationships which might give rise to prejudice made joinder proper and desirable. See: Silverman v. Cinofsky (D.C.Ill.1953), 15 F.R.D. 122, at 123.
The evidence which was available to the court which it should have considered in rendering summary judgment for the appellees consisted of 25 signed documents, affidavits, admissions and the depositions of employees of each of the Grain Companies and all of appellants. Before setting out the evidence it is necessary to decide whether the court erred in failing to read the depositions and whether said depositions are a part of the record on appeal.
The depositions were filed without objection and the parties made cites to the depositions in their briefs to the court in support of their respective motions for summary judgment. All parties seemed to operate on the assumption that the filed depositions were before the court. The trial court's order publishing the depositions after the praecipe was filed states that the need for publication of the depositions so that they could be included in the record on appeal was brought to its attention by counsel of both parties and further states that publication would be agreeable to all
parties. Appellants concede in their reply brief that it may be, as appellees assert, that depositions no longer need to be published before being read or introduced into evidence. And appellants make no argument in their brief that the lack of publication is reversible error. Appellants' failure to object and their acquiescence to the belated publication of the depositions and inclusion of the same in the record on appeal constitutes a waiver as to the lack of publication at the time summary judgment was granted. See: Winkler v. Royal Insurance Company (1975), Ind.App., 337 N.E.2d 499, at 502.
In Swartzell v. Herrin (1969), 144 Ind.App. 611, 248 N.E.2d 38, this Court held that until depositions were published they were not a part of the record before the court on the motion for summary judgment. But as Judge Garrard noted in his dissent in Augustine v. First Fed. Sav.s&sLoan Ass'n of Gary (1978), Ind.App., 373 N.E.2d 181, Swartzell should no longer be applicable since the statute upon which it was based, Acts 1881 (Spec.Sess.), ch. 38, § 306, p. 240, § 2-1520, Burns' 1968 Repl., was repealed by Acts of 1969 in conjunction with the adoption of the 1970 rules of civil procedure. The filing of the depositions satisfied TR. 56.
Appellants claim that the depositions had not been read and that this fact came to their attention only after the praecipe was filed. On July 16, 1976, the Gumzes filed a petition requesting this Court for an order directing the Clerk of the Jasper Circuit Court to include unpublished depositions in the record on appeal. Attached to the petition was the affidavit of the Clerk of the Jasper Circuit Court. Said affidavit stated that the sealed envelopes bearing the depositions filed by the parties had never been opened. In direct contradiction is the court's statement in rendering summary judgment in favor of appellees that "the Court has considered the deposition testimony of James Anderson, Warren Short, Clarence Lawrence, Joseph Smolek, Arthur P. Gumz, Fred Gumz, Paul Gumz and Patricia Good." But the transcript of the record imports absolute verity and this Court cannot change the record on the basis of the clerk's affidavit which was not a part of the record. Harding v. Brown (1969), 144 Ind.App. 528, at 531, 247 N.E.2d 536, at 538. If appellant determines that the record contains error his proper remedy is to seek certiorari to correct the record pursuant to Ind.Rules of Procedure, Appellate Rule 7.2(C). Ladd v. Rev. Bd. (1971), 150 Ind.App. 632, at 638, 276 N.E.2d 871, at 875.
Clearly, the failure of a trial court to read the depositions in rendering its decision would be error. But appellants have not even shown that the depositions contain facts contrary to those found by the trial court which would have required the trial court to grant summary judgment in their favor or not at all. In Augustine v. First Fed. Sav.s&sLoan Ass'n of Gary (1978), Ind.App., 373 N.E.2d 181, this Court, after noting that the trial court erred in granting summary judgment without considering the sealed depositions, opened and read the depositions. This Court's reversal in Augustine was based upon the determination that the depositions revealed genuine issues of material fact. Based upon Augustine, the depositions herein will be considered a part of the record and used in support of our decision in this case.
The evidence which was available to the trial court shows that it is uncontradicted that the Gumzes signed the 25 contracts admitted into evidence and that at the time they were signed and until the suit was filed the Gumzes and the Grain Companies believed the contracts were binding upon them. This belief of the parties is evidenced by the fact that Gumzes delivered grain on some of the contracts and the Grain Companies honored many such deliveries where the contract price was higher than the market price at the time of said deliveries.
The deposition testimony of the four grain elevator company employees showed that it was customary for farmers, and it was the procedure used by the Gumzes, to call in and ask the grain company if a certain price could be had for the sale of corn or soybeans. The farmer would ask
the grain company to sell so many bushels at such a price for delivery at a date in the future. The grain company employee would then call the farmer back if he was able to sell the grain through his broker for the stated price and would tell the farmer to come in and sign the contract, now reduced to a writing. In presenting evidence as to damages, the Grain Companies showed that when such a contract was negotiated with a farmer, the grain company was committed by a second contract to sell the farmer's grain to a third party and that the Gumzes were aware of the fact that the Grain Companies would have to get the grain at market price to fill the contract they had executed with a third party if the Gumzes defaulted on the contract.
The contract forms utilized by the four Grain Companies were similar in content, each containing all the necessary terms of a contract for the sale of grain, i. e., the amount of grain, price per bushel, time and place of delivery. The forms of Smolek Grain, Inc., Pulaski and Starke Counties Farm Bureau Cooperative Assoc., Inc. were only signed by the seller of the grain while contracts of LaCrosse Grain Company were signed by both buyer and seller. The contract form utilized by Smolek, Pulaski and Starke Counties grain companies is as follows:
No.
_________19__
This is to certify that I, __________, have this day contracted and sold to __________, bushels of _________ at ____________ cents per bushel (______lbs. per bushel) to be clean, sound and dry and to grade No. _______ to be delivered into ____________ on or before the __________ day of ___________, 19__.
If damaged or inferior grain is delivered and accepted on this contract, the market difference at which such grain is selling under the contracted grade day of delivery shall be deducted from the contract price. Any extension of time to be at buyer's option. Any balance or overrun will be accepted only at the market price on day of delivery. Should elevator be full or incapacitated in any way, when grain is tendered, grain shall be delivered as soon thereafter as elevator can receive same.
I certify that this grain is in my possession and free of all liens and encumbrances.
___________________
Received of ____________________________________DOLLARS To apply on this contract
The form utilized by LaCrosse is in the same form except that the buyer also signed the form. Since the argument of appellants concerns the lack of the buyer's signature, we need not deal separately with LaCrosse's form. If the form above is sufficient, then LaCrosse's is also sufficient.
Appellants argue that the contract form is not a binding contract because the buyer had not promised to buy the grain. In response to appellees' request for admissions, appellants stated that the documents were an offer made by appellants which was not accepted by the appellees. But appellees furnished the form and, as pointed out by appellees, the second paragraph of the form assumes an obligation on the part of the buyer to buy the grain pursuant to the contract. The documents constituted valid contracts, imposing mutual obligations upon the grain company and the farmer.
Contracts for the sale of goods are governed by the provisions of the Indiana Uniform Commercial Code. IC 1971, 26-1-1-101 Et seq. (Burns Code Ed.). IC 1971, 26-1-2-204(1) provides:
"Formation in general. (1) A contract for sale of good may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract."
Appellees correctly contend that the conduct of the parties was such that it was clear and uncontradicted that both parties recognized the existence of a contract. Thus, even if the contract forms utilized herein had not been binding contracts the conduct of the parties would have made them binding contracts. Warrick Beverage Corporation v. Miller Brew. Co. (1976), Ind.App., 352 N.E.2d 496, at 500; Jos. Schlitz
Brewing v. Central Bev. Co., Inc. (1977), Ind.App., 359 N.E.2d 566, at 575.
Appellants argue that the correct measure of damages has not been presented and that the damages awarded were excessive. The affidavits filed by the Grain Companies establish the market price on the date the grain company learned of appellants' default. Appellees subtracted that amount from the contract price to arrive at their actual damages. This conforms to the measure of damages set out in IC 1971, 26-1-2-713(1):
"Buyer's damages for nondelivery or repudiation. (1) Subject to the provisions of this article (chapter) with respect to proof of market price (section (26-1-)2-723), the measure of damages for nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this article (chapter) (section (26-1-) 2-715), but less expenses saved in consequence of the seller's breach."
The affidavits filed by employees of each of the Grain Companies stated that they had personal knowledge of the market price on the day that the company learned of appellants' default on each individual grain contract. The measure of damages as set out above is the difference between the contract and market price and said evidence is unchallenged. As there is no genuine issue of fact, the trial court properly awarded the amounts set out in its decision and judgment rendered thereon that were denominated actual damages.
Appellants argued in their motion to correct errors that these affidavits contained inadmissible hearsay but by their failure to argue this issue on appeal, they have waived it. AP. 8.3(A)(7).
Appellants also argue that there was a genuine issue of fact as to the incidental and consequential damages awarded to appellees, alleging that the evidence fails to establish that the Grain Companies suffered any such damages and even if they did suffer such damages, the evidence fails to establish what specific amounts they suffered as to each contract. The affidavits of the employees of the farm grain companies alleged incidental and consequential damages of 10 cents per bushel in all of the contracts breached by appellants except for one contract of Starke County Farm Bureau Cooperative Assoc., Inc. as to which damages of 15 cents per bushel were alleged.
The sole evidence as to incidental damages is contained in the depositions of various employees of the Grain Companies. The evidence is vague and skimpy. Different figures were given including expenses for freight, shrinkage and profit. There is no uncontradicted evidence for any of the Grain Companies as to the exact damages for any one single contract. There is thus a genuine issue of fact as to the amount of consequential damages. As summary judgment was improperly granted on this issue, the cause must be remanded to the trial court for further proceedings as to this issue alone.
Finally, the appellants argue that the trial court should have found that there was a question of fact as to whether the Grain Companies had credited or paid appellants for deliveries of grain made pursuant to the contracts. But the issue was not before the court at trial as the Gumzes failed to file a counterclaim for such amounts pursuant to Ind.Rules of Procedure, Trial Rule 13. Even if we could say that it was an issue before the trial court in the absence of a counterclaim, appellants have waived this issue by their failure to include it in their motion to correct errors. A mere allegation that the damages were excessive cannot be said to be specific enough to raise the issue of Gumzes' claim that they had not been paid or credited for specific deliveries of grain made to appellees. TR. 59(G); Macken v. City of Evansville (1977), Ind.App., 362 N.E.2d 202, at 203.
The judgment of the trial court is affirmed in all respects except for the award of incidental and consequential damages, which award is reversed. The cause is remanded to the trial court for further proceedings as to that issue alone.
GARRARD, P. J., and STATON, J., concur with opinions.
STATON, Judge, concurring.
I concur in the majority opinion, however I feel that several points should be clarified in our reliance upon Augustine v. First Fed. Sav.s&sLoan Ass'n of Gary (1978), Ind.App., 373 N.E.2d 181. First, the trial court in Augustine made no mention in its judgment that it had considered the depositions before rendering summary judgment. In Gumz which is before us, the trial court did state in its judgment that it had considered the depositions. When the trial court states in its summary judgment that it has considered the depositions, it does not make any difference whether the depositions are sealed or unsealed. They are a part of the record on appeal. The Ind.Rules of Procedure, Trial Rule 56(C) does not require that the depositions filed with the trial court be "published" nor does it require that the trial court consider only those particular copies of the deposition which are under seal. Copies of the very same deposition on file may have been presented to the trial court in oral arguments and in written memoranda which were in support of the motions for summary judgment. The "published" requirement which existed prior to the new rules adopted in 1970 is no longer required. The adoption of the new rules of procedure impliedly overruled Swartzell v. Herrin (1969), 144 Ind.App. 611, 248 N.E.2d 38, which relied upon a statute requiring publication of depositions. The statute, Acts 1881 (Spec.Sess.) ch. 38, § 306 (Burns Ind.Anno.Stat. § 2-1520), was repealed in 1969.
Secondly, unless the judgment of the trial court clearly reflects that it did not consider the filed depositions as occurred in Augustine, error in rendering a summary judgment by failing to consider filed depositions may only be raised by correcting the record as provided by Ind.Rules of Procedure, Appellate Rule 7.2(C).
GARRARD, Presiding Judge, concurring.
As previously stated in my opinion in Augustine v. First Fed. Sav.s&s Loan Ass'n of Gary (1978), Ind.App., 373 N.E.2d 181, 184 I believe "publishing" a deposition is no longer a legally significant event. Swartzell v. Herrin (1969), 144 Ind.App. 611, 248 N.E.2d 38, decided under prior practice, should be overruled. I therefore concur with Judge STATON and with the balance of Judge HOFFMAN's opinion.