(concurring in part and dissenting in part):
I respectfully dissent as to one issue. The theory of the suit was breach of an oral contract. The defenses, as pertinent here, were denial of the existence of the alleged contract and, in the alternative, if a contract existed, a claim of material breach by the plaintiff. Both defenses were submitted to the jury.
Plaintiff contends on appeal that the trial court erred (1) in not determining as a matter of law that there was a contract as alleged and (2) in also submitting the defense of a breach of the contract to the jury. I agree with plaintiff *190as to the first contention but not as to the second. The jury returned a general verdict and it would be necessary under my view to remand the case for a new trial on the breach of contract defense.1
A representative of Joseph negotiated with the sales manager of defendants on two occasions prior to the 1969-70 citrus season for the purchase by Joseph of citrus pulp. The sales manager testified for defendants as follows:
“. . . We came to an arrangement whereby I would not go out and get any additional customers; I wouldn’t go and try to take on a new dairy for the season. Any excess feed that we had during the season we would agree to sell to L. S. Joseph Company. . . .”
Following these negotiations, Joseph issued to defendants three documents entitled “Confirmation of Purchase.” Two were dated August 25, 1969, each confirming a purchase of 2,500 tons of citrus pulp at a stated price. The other was dated September 25, 1969 and was for 5,000 tons at the same price. On October 13, 1969 the representative of Joseph who had carried on the negotiations wrote to the defendants, referring to the 10,000 tons of citrus pulp which was to be received from them and stating that it had been sold to a European customer.
The defendants thereafter delivered 2,500 tons of pulp to Joseph at the agreed price. Meanwhile the market price had increased in stages from $22.-50 per ton to $40.00 per ton. The last shipment was made by defendants on February 16, 1970. In early March and prior to March 6, 1970, they advised Joseph that they would make no further shipments.
Defendants denied that there was a contract, contending that they refused to make a firm contract because Joseph would not agree to a “freeze” clause. The difficulty with this position is that defendants’ sales manager testified to the contrary, i. e., that the agreement was for excess pulp only. This means that defendants would be excused on a pro tanto basis from performing to the extent that no excess was available, whether due to a freeze or otherwise. I am unable to discover any contention by defendants that they failed to deliver because of lack of excess product.
It appears that negotiations continued between the parties for several months over a contract whereunder Joseph would take all of defendants’ production but that these negotiations were unsuccessful. It is to be noted that these negotiations were aside from the contract, if there was a contract, for the acquisition of the 10,000 tons of pulp.
The district court concluded that the question whether a contract existed presented a jury issue. I disagree and am thus also in disagreement with the majority.
I find it unnecessary to go beyond, first, the testimony for defendants that they intended to sell any excess citrus pulp to Joseph, and second, the confirmations of purchases and the letter of October 13 which are consistent with that stated intention. These documents confirmed what defendants say they agreed to do, at least up to 10,000 tons of any excess pulp. This much was undisputed and made the contract as I see it. This view is buttressed by defendants’ shipping 2,500 tons under one of the August 25 confirmations.
The other issue submitted to the jury under the general verdict was the alternative assertion that plaintiff breached the contract. I agree with the majority that this issue was for the jury but, as noted supra, because of the general verdict a new trial on this single issue would be necessary even if my views had prevailed.
. Special interrogatories under Rule 49(b), F.R.Civ.P., might have obviated a new trial.