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June 24, 1988


Appeal from Jackson Circuit Court, Robert L. Hodges, Judge

Houston, Justice. Torbert, C. J., Maddox, Almon, and Beatty, JJ., concur.

The opinion of the court was delivered by: Houston


This is a contract case. Alvin Cagle, a potato farmer, entered into a written agreement to purchase seed potatoes from H. C. Schmieding Produce Company, Inc. ("Schmieding"). According to the terms of this contract, Cagle was to immediately pay a portion of the purchase price of the seed potatoes to Schmieding; the balance was to be paid when the crop of potatoes to be raised from the seed potatoes was harvested. According to the record, this contract was entered into on March 6, 1985. Although Cagle paid the pre-harvest portion of the price for the seed potatoes and proceeded to cultivate them, he failed to harvest most of the resulting crop or to pay most of the post-harvest portion of the purchase price. Consequently, Schmieding sued Cagle for the breach of this contract.

Cagle initially responded to this suit by filing an answer and a counterclaim alleging fraud and misrepresentation on the part of Schmieding. The essence of these claims was that Schmieding had misrepresented an intention to enter into a second contract that was to have obligated Schmieding to purchase the crop resulting from the seed potatoes. Cagle also alleged that Schmieding misrepresented an intention to execute a second written contract document reciting the terms of this additional agreement. Cagle later amended this counterclaim to include the additional claim that the contract to purchase his potato crop had in fact been entered into and had been breached by Schmieding, notwithstanding the fact that no formal memorandum of this second contract was actually executed by either party.

According to Cagle, this second contract arose in part from at least two telephone conversations with Schmieding's employees, one of which occurred at the end of February 1985, and one of which took place in May 1985. Cagle introduced evidence at trial to the effect that Schmieding had agreed in these conversations to pay Cagle $5.50 per bag for approximately 10,000 bags of white potatoes and to pay him the market price at harvest time for all of his red potatoes grown on 30 acres of land. In support of this contract, Cagle also introduced a letter addressed to him from Schmieding containing, in pertinent part, the following language:

"Your potato harvest season is just around the corner. We are looking forward to working with you on the shipment of your crop.

". . . .

"Please give us a week notice before you are ready to ship, in order for us to prepare our sales orders. I have enclosed our business card for your reference. Give us a call, if you have any questions.


"L. H. Schmieding /s/

"L. H. Schmieding"

This letter was dated May 26, 1985.

Schmieding denied the existence of this alleged contract and refused to pay Cagle for his potato crop at harvest time. As a consequence, Cagle claimed, he could not pay the balance due on his seed contract with Schmieding. In short, Cagle essentially claimed at trial that his failure to harvest the potatoes and to pay Schmieding resulted not from a unilateral breach of the seed contract on his part, but primarily from Schmieding's breach of the alleged second or collateral contract with Cagle in which Schmieding had agreed to purchase Cagle's resulting potato crop.

The case was tried before a jury. At the close of the evidence, the trial court directed a verdict in favor of Schmieding and against Cagle as to Schmieding's claim regarding the contract for the seed potatoes. Likewise, the trial court also directed a verdict in favor of Schmieding and against Cagle as to Cagle's claims of fraud and misrepresentation. The trial court, however, submitted to the jury Cagle's contract claim regarding the purchase of the potato crop, and the jury found in favor of Cagle, awarding him compensatory damages for the breach of this contract.

The trial court subsequently denied Schmieding's various post-trial motions, including a motion for J.N.O.V. or a new trial, and entered a judgment based on the jury's verdict. Schmieding appeals, arguing that the trial court erred in submitting the contract claim to the jury and that it improperly dealt with an allegedly prejudicial remark made in closing argument by Cagle's counsel. On brief, Cagle also purports to have cross-appealed, arguing that the trial court improperly disposed of his claims for fraud and misrepresentation. We affirm the judgment of the trial court in all respects.

I. The Contract Claim

Schmieding argues on this appeal that Cagle's contract claim was improperly submitted to the jury, either because there was insufficient evidence of the existence of such a contract to justify the jury's consideration of the claim, or because the claim was due to be otherwise denied as a matter of law.

We have summarized the applicable standard of review in regard to Schmieding's evidentiary challenges as follows:

"'A motion for directed verdict or JNOV is tested against the scintilla rule, which requires that a question go to the jury "if the evidence or any reasonable inference arising therefrom, furnishes [so much as] a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint." Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). In reviewing a trial court's ruling on these motions, the appellate court, guided by the standard of the scintilla rule, determines whether there was sufficient evidence below to produce a conflict warranting jury consideration. Baker v. Chastain. 389 So.2d 932 (Ala. ...

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