(concurring specially).
The trial court based its decision on a finding that Pillsbury breached the contract by making an unauthorized agreement with Bullock, the trucker, to extend it into February. This finding has substantial support in the following testimony of Bullock:
Q. * * * Do you remember when you called him, Dale? A. I’d say it was about 4:30 in the afternoon on the 25th.
Q. And why did you call him? A. Tell him I was going to come with Ward’s beans.
Q. All right. Did you talk with Mr. Aden? A. I did.
Q. And to the best of your recollection, will you tell us what he said, and what you said? A. Well, he said that, “We are filled up to our ears.” And as we talked, he said that I could come, and in the agreement, we decided to leave them sit for a spell. I said, “They are in the bin, and we just as well leave them set.”
Q. No, who decided? A. Del and I.
Q. All right. He told you that they were full up to their ears, you say? A. Uh-huh. (yes).
Q. All right. Now, what happened after that? A. Well, that was the end of me—
Q. All right. A. After Del and I made the agreement that we would run them over, why, that was the end of our conversation.
Q. Now, what do you mean by “run them over”? A. Well, run them into February. Pillsbury did not contend in the trial court that Bullock made this agreement as Ward’s agent. Instead, Pillsbury relied wholly on its contention that Ward orally agreed to extend the contract in his January 27 conversation with Pillsbury’s employee Aden. Having failed to urge its present agency claim in the trial court, Pillsbury may not rely on it here. For this reason, I do not join division I of the court’s opinion.
Moreover, I do not join division II of the opinion because I do not think the trial court found Aden told Ward the reason for the extension was Pillsbury’s inability to accept the soybeans. Instead I think the trial court based its finding of repudiation on the agreement between Pillsbury and Bullock. However, because the trial court's finding is supported by substantial evidence and under principles explained in division II of the majority opinion sustains the holding, I concur in the result.
MASON, J., joins this special concurrence.