Case law on the relationship between these two sections consistently treats the remedies under § 2-708 as a seller's "fallback" position: first the court determines if the facts fit the contours of the action for the price, and only if they do not does the court look at the § 2-708 alternatives. See Zippy Mart of Alabama, Inc. v. A B Coffee Service, Inc., 380 So.2d 833, 835 (Ala. 1980); Wolpert v. Foster, 312 Minn. 526, 254 N.W.2d 348, 351 (1977); Cesco Manufacturing Corp. v. Norcross, Inc., 7 Mass. App. 837, 391 N.E.2d 270, 274 (1979); Detroit Power Screwdriver Co. v. Ladney, 25 Mich. App. 478, 181 N.W.2d 828, 832 (1970). Moreover, the § 2-708(2) remedy is written to be limited in scope.
Mitchell v. Rende, 225 Minn. 145, 150, 30 N.W.2d 27, 31 (1947), citing, Dwyer v. Illinois Oil Co., 190 Minn. 616, 619, 252 N.W. 837, 838 (1934). See also Wolpert v. Foster, 312 Minn. 526, 254 N.W.2d 348, 352 (1977). For example, in Wolpert v. Foster the Minnesota Supreme Court upheld the trial court's finding of an implied agreement to pay interest.
We reject Fabric World's argument that Foxco should be denied the application of section 2-709 because it was barred from the section 2-706 remedy. See Wolpert v. Foster, ___ Minn. ___, 254 N.W.2d 348, 351-52 (1977). IV
A question ofmaterial fact also remains as to whether DiFazio, by failing to continue working afterDecember 31, was simply abi ding by the strict terms of the agreement or effectively quithis full-time job before giving it a chance to start, thus precluding any recovery. A finalquestion of material fact remains as to whether DiFazio's delay in documenting his objection to postponing the transition to full-time employment constituted an oralmodification of the contract. Pine River, 333 N.W.2d at 626-27 (at will employmentcontract may be modified orally); Wolpert v. Foster, 254 N.W.2d 348 (Minn. 1977); seealso Rosenberg v. Townsend, et. al., 376 N.W.2d 434, 437-38 (Minn.Ct.App. 1985) (accession to modification of a contract estops raising a breach of contract claim). Forthese reasons, summary judgment is not appropriate on this aspect of the breach ofcontract claim.
Section 334.03 provides that all usurious contracts "shall be void except as to a holder in due course." Minn.Stat. § 334.03; Wolpert v. Foster, 312 Minn. 526, 533, 254 N.W.2d 348, 352-53 (1977); Phalen Park State Bank v. Reeves, 312 Minn. 194, 200, 251 N.W.2d 135, 139 (1977). A void contract is no contract at all; it binds no one and is a mere nullity.
In the absence of a written agreement which provides for a higher rate of interest, an amount in excess of 6 percent cannot be charged. Wolpert v. Foster, Minn., 254 N.W.2d 348 (1977); Blindman v. Industrial L. T. Corp., 197 Minn. 93, 266 N.W. 455 (1936). Minn.St. 334.01, subd. 1, provides in pertinent part: "The interest for any legal indebtedness shall be at the rate of $6 upon $100 for a year, unless a different rate is contracted for in writing; * * *."
"It is well settled that the conduct of contracting parties may be evidence of a subsequent modification of their contract." Yaritz v. Dahl, 367 N.W.2d 616, 618 (Minn. App. 1985) (citing Wolpert v. Foster, 312 Minn. 526, 532, 254 N.W.2d 348, 352 (1977)). "Whether a pre-existing agreement has been modified depends on the parties' objective manifestations, not their subjective understanding."
A written contract may be modified after its execution by the acts and conduct of the parties in the same manner as a contract may be entered into in the first place. Wolpert v. Foster, 254 N.W.2d 348, 352 (Minn. 1977). And parties may waive contract provisions by ignoring them and acting as if they had no application.
Subsequent acts and conduct of the parties may establish implied rescission of a contract. Wolpert v. Foster, 312 Minn. 526, 532, 254 N.W.2d 348, 352 (1977); Mitchell, 225 Minn. at 150, 30 N.W.2d at 30-31. The district court found the parties came to an agreement in the nature of a rescission during their telephone conversation and ratified their agreement through their subsequent conduct.
It is well settled that the conduct of contracting parties may be evidence of a subsequent modification of their contract. Wolpert v. Foster, 312 Minn. 526, 254 N.W.2d 348, 352 (1977); Williston on Contracts § 623, at 815-16 (3d ed. 1961). The conduct which Dahl relies upon is Yaritz' participation in the managerial aspects of ICS after the February 16 agreement was entered into. There is evidence that Yaritz personally paid the full-time secretary's salary for two weeks sometime in late February or March of 1982. Yaritz may have also paid for other business expenses.