## Facts

- Tower City Grain Company, a grain elevator, and E. W. Richman & Sons, grain farmers, had a long history of making oral grain contracts with delivery dependent on storage space and rail availability.
- The parties made an oral agreement for the Richmans to sell Tower City 10,000 bushels of 58-pound test-weight wheat, but disputed key terms.
- The Richmans asserted the contract price was $2.24 per bushel and the contract date was December 15, 1972; Tower City asserted $2.25 per bushel and January 2, 1973.
- No fixed delivery date was set; delivery was to occur when storage or rail transportation became available, consistent with prior dealings.
- In spring and summer 1973, the Richmans sought to deliver; they were told the elevator was full or no boxcars were available, and that they were “next on the list.”
- The Richmans claimed Tower City accepted wheat from other farmers during the delay and contended Tower City’s delay was a breach that excused their performance.
- Tower City claimed it accepted other grain only to fill earlier contracts or for seed resale and that delays could occur during boxcar shortages.
- Tower City requested delivery in mid-July 1973; the Richmans refused to deliver.

## Issues

1. Whether the trial court’s findings on disputed oral contract terms (including price and contract date) were clearly erroneous.
2. Whether ordering specific performance of a contract for fungible wheat was an abuse of discretion under U.C.C. § 2-716 absent findings or proof that damages were inadequate or that other proper circumstances justified that remedy.

## Decision

- The Supreme Court of North Dakota upheld the trial court’s findings on the contract terms, concluding they were not clearly erroneous.
- The court reversed the judgment ordering specific performance, holding the trial court abused its discretion by granting that remedy without adequate support in the record.
- The case was remanded for further proceedings consistent with the view that an award of damages, rather than specific performance, was the appropriate remedial approach on this record.

## Legal Principles

- Appellate review of trial court fact-finding is deferential; findings will be disturbed only if clearly erroneous.
- Under U.C.C. § 2-716, specific performance may be ordered when goods are unique or in other proper circumstances, but it remains an extraordinary remedy.
- For standard, marketable commodities, specific performance generally requires a showing that money damages are inadequate or that substitute goods cannot reasonably be obtained.
- A trial court must articulate factual findings or reasoning supporting the statutory and equitable basis for specific performance; granting that remedy without such support constitutes an abuse of discretion.

## Conclusion

The court enforced the trial court’s resolution of disputed contract terms under the clearly erroneous standard but reversed specific performance because wheat is a fungible commodity and the record lacked findings or evidence that damages were inadequate or that other circumstances justified compelling delivery in kind.


Tower City Grain Co. v. Richman, 232 N.W.2d 61 (N.D. 1975)