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Blue Creek Farm, Inc. v. Aurora Coop. Elevator Co. - 259 Neb. 1032


In a bench trial of a law action, a trial court's findings have the effect of a jury verdict and will not be set aside on appeal unless clearly erroneous. 


Under two separate grain purchase contracts, Blue Creek Farm (Blue Creek) agreed to sell and Aurora Cooperative Elevator Company (Aurora) agreed to buy a total of 25,000 bushels of No. 2 yellow corn. Because of a shortage in railcar availability, however, Aurora was not able to take delivery in March 1996. Blue Creek's president, Larry Paschke, testified that he called Aurora on several occasions during the month of March 1996 to obtain permission to deliver the corn. Each time he contacted Aurora, however, he was informed that Aurora could not accept delivery of Blue Creek's corn. Eventually, Blue Creek, brought an action against Aurora, seeking a declaration that its contractual obligation to deliver corn had expired. Blue Creek further sought a declaration that each party's obligations under the contracts were excused by Aurora's attempt to invoke the contracts' force majeure provisions. The district court for Hamilton County determined that time was not of the essence and that an 11-day delay in performance was reasonable, did not constitute a repudiation of the contracts, and dismissed Blue Creek's claim. Blue Creek appealed.


Did Aurora repudiate the contracts with Blue Creek?




The Supreme Court of Nebraska affirmed the district court's judgment because the district court was not clearly erroneous in finding that Aurora did not repudiate the contracts by sending the letter informing Blue Creek that it intended to delay performance by 30 days. It held that the letter evinced no intention on the part of Aurora not to perform its obligations under the contracts. Rather, it informed Blue Creek that although it intended to perform, its performance would be delayed by up to 30 days.

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