There is no specific allegation that defendant was a "merchant." In Oloffson v. Coomer, 11 Ill. App.3d 918, 296 N.E.2d 871 (3d Dist. 1973), we recently considered an action between a grain merchandiser to whom a farmer had agreed to sell and deliver grain where an agreement had been repudiated and where there was an issue of whether the farmer was a "merchant." In that case, in the context of determining certain rights and duties adhering to the respective parties, depending upon whether one or the other was a merchant, we said:
Id. at 492. In light of the unequivocal repudiation and because cover was "easily and immediately . . . available . . . in the well-organized and easily accessible market," id. at 493 (quoting Oloffson v. Coomer, 11 Ill. App.3d 918, 296 N.E.2d 871 (1973)), a commercially reasonable time did not extend beyond the date of repudiation. We agree with the First National court that "the circumstances of the particular market involved should determine the duration of a `commercially reasonable time.'"
We agree with the trial court that this response terminated the entire contract. See, e. g., Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871 (1973). In determining damages under Ala. Code § 7-2-713, therefore, we must distinguish between the two separate breaches.
s easily and immediately available to the buyer in the "well-organized and easily accessible market for purchases of grain to be delivered in the future," the "commercially reasonable time" under Section 2-610(a) expired as a matter of law on June 3. . . . The only distinguishing feature between this case and Oloffson is the fact that although there apparently had been no showing in Oloffson that the buyer there could not have immediately gone into the market and made "cover" purchases, the district court here made findings that Wertz was the only employee of the Bank who was involved in purchasing GNMA securities on behalf of the Bank, and that Wertz, having been tied up on October 2 and 3 in pre-arranged meetings in New Jersey and New York with representatives of Kislak and other sellers like Jefferson who failed to confirm contracts to sell GNMA securities to the Bank, had been unable to return to the Bank and have access to the market available for cover until October 5, 1973. In Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871, Coomer, a corn farmer, during April of 1970, agreed to sell 40,000 bushels of corn to Oloffson. One lot was to be delivered in October at a price of $1.1275 per bushel, and a second in December at $1.1225.
Sawyer Farmers Coop. Ass'n v. Linke, N.D., 231 N.W.2d 791 is not helpful because the date for determination of the market price was controlled by a contract provision and not by § 2-713. Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871, is more nearly in point. There the buyer contracted in 1969 with the seller-farmer for delivery of corn in 1970.
The Illinois appellate courts were split on the issue. Sierens v. Clausen, 21 Ill. App.3d 450, 315 N.E.2d 897 (3d Dist. 1974) (farmer is not a merchant); Campbell v. Yokel, 20 Ill. App.3d 702, 313 N.E.2d 628 (5th Dist. 1974) (farmer is a merchant); Oloffson v. Coomer, 11 Ill. App.3d 918, 296 N.E.2d 871 (3d Dist. 1973) (farmer is not a merchant). In light of this uncertainty, the parties constructed elaborate arguments in support of their respective positions, drawing freely from secondary sources and decisions of other jurisdictions.
[5,6] It has been held that a grain merchant should cover on the date that he becomes aware of the seller's repudiation where cover is easily and immediately available in the well organized and easily accessible market for purchases of grain to be delivered in the future. Oloffson v. Coomer, 11 Ill. App.3d 918, 296 N.E.2d 871. Because the record in the instant case does not disclose that cover was immediately available, however, we agree with the trial court that plaintiff acted reasonably in making the first installment of the cover purchase on June 13, 1973. The remaining purchase on June 26, 1973, poses a problem, however, in view of the lack of evidence in the record why the cover could not have been fully effected on the earlier date.
239 Ark. at 964, 395 S.W.2d at 556. In Oloffson v. Coomer, 11 Ill. App.3d 918, 296 N.E.2d 871 (1973), the Third Division of the Appellate Court of Illinois stated in dictum that a farmer in the business of growing grain was not a "merchant" with respect to the merchandising of grain. However, in Campbell v. Yokel, 20 Ill. App.3d 702, 313 N.E.2d 628 (1974), the Fifth District of the Appellate Court of Illinois dealt with a case that involved an action against some soybean farmers on an alleged breach of an oral contract for the sale of soybeans.
The most common interpretation, accepted by a majority of courts, is that Code 2-713(1) refers to time of repudiation. This interpretation was adopted in the leading case of Oloffson v. Coomer, 11 Ill. App.3d 918, 296 N.E.2d 871 (1973). In Oloffson, the buyer contracted with the seller-farmer for delivery of corn in 1970.
I must respectfully dissent from that portion of the opinion relating to the issue of damages. In Oloffson v. Coomer (1973), 11 Ill. App.3d 918, 296 N.E.2d 871, this court clarified the rights and duties of a buyer confronted with a repudiating seller. In April of 1970, Coomer, a farmer, contracted with Oloffson, a grain dealer, to sell Oloffson 40,000 bushels of corn at a price of $1.125 per bushel.