## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3458

___________ Melford Olsen Honey, Inc, *
* Plaintiff - Appellee, *
* v. *
* Richard Adee, doing business as Adee * Honey Farms, * * Defendant - Appellant. *

___________ Appeal from the No. 05-3459 United States District Court ___________ for the District of Minnesota. Melford Olsen Honey, Inc, *
* Plaintiff - Appellant, *
* v. *
* Richard Adee, doing business as Adee * Honey Farms, * * Defendant - Appellant. *

___________ Submitted: April 17, 2006 Filed: July 5, 2006

___________1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota.
-2- Before LOKEN, Chief Judge, LAY, and BYE, Circuit Judges.

___________ BYE, Circuit Judge.

Melford Olson Honey, Inc. (Mel-O), a Minnesota honey wholesaler, sued Richard Adee (Richard) doing business as Adee Honey Farms (Adee Honey), a South Dakota honey farmer, in Minnesota state c ourt for breach of contract and specific performance, alleging Adee Honey failed to provide the requisite quantity of honey set forth in a June 2002 contract. Adee H oney removed the case to federal court on diversity jurisdiction and counterclaimed for money owed under the same contract. The district court 1 denied both parties' motions for partial summary judgment, and the case proceeded to a jury trial. The jury returned a verdict in favor of Mel-O in the amount of $460,950 on the initial claim and a ve rdict in favor of Adee Honey in the amount of $695,206 on the counterclaim. The di strict court denied the parties' posttrial motions, and both parties timely appealed. We affirm.

I

Adee Honey, formed by Richard in 1957, operates honey farms in California, Nebraska, Mississippi, and South Dakota. Adee Honey's principal place of business is in South Dakota. Mel-O is owned by W illiam Sill, and Curt and Darcy Riess. They bought the company in 1997 and were referred to Richard by Mel-O's prior owners.

In March 2002, Adee Honey and Mel-O ente red into an oral agreement for the sale of honey. At the time, Adee Honey possessed a sufficient inventory of honey and2 One load, or truckload, contains approximately 43,000 pounds. Although thirty loads would equal closer to 1.29 million pounds of honey, the parties disputed whether the March 2002 contr act was for thirty loads, 1.5 million pounds, or a different quantity.
-3- agreed to sell approximately thirty loads, or 1.5 million pounds, 2to Mel-O for 82¢ per pound. Shortly thereafter, Mel-O sent a pur chase order to Adee Honey memorializing the sale of 1.5 million pounds of honey fo r 82¢ per pound. The purchase order noted it was a contract with a "Good Thru" date of April 11, 2002. It was sent to Adee Honey's South Dakota office although Mel- O allegedly knew Richard was working at the Mississippi facility until mid-June.

At approximately the same time, Ad ee Honey called Mel-O to discuss the possibility of selling up to twelve loads of its inventoried honey to a competitor. According to Adee Honey, Mel-O agreed, th ereby altering the quantity term of the March 2002 contract. According to Mel- O, it permitted Adee Honey to sell twelve loads of inventoried honey to another distributor, provided the terms of the March 2002 contract were fulfilled with other honey. Between the months of May and September 2002, Adee Honey sent Mel-O eighteen loads of honey at 82¢ per pound.

In May 2002, honey prices began to risedue to a contamination in major Chinese honey supplies. In June 2002, Mel-O contacted Adee Honey about purchasing an additional 3. 2 million pounds, and the parties agreed on a $1.00 per pound purchase price for the additional quantity. Mel-O sent a contract to Adee Honey detailing the new arrangement , and Richard added a handwritten force majeure clause, specifically excusing performance in the event of "an act of God such as a drought or flood."

Later in the summer of 2002, South Dakota was experiencing drought-like conditions, and Adee Honey unilaterally st opped performing its obligations under the June contract. According to Mel-O, Richard contacted it to discuss the possibility of3 The Special Verdict form, however, aske d the jury if Mel-O breached the "June 2002 contract by paying Adee Honey $.82 per pound for 551,374 pounds that were invoiced at $1.55 per pound." (emphasis added).

4 According to Mel-O, it paid the invoi ced amount for honey received prior to November 2002. Only after Adee Hone y began invoicing the honey at $1.55 per pound did Mel-O determine the March 2002 contract had not been fulfilled, so it paid Adee Honey 82¢ per pound for approximately 575,000 pounds to satisfy the first contract.

5 Mel-O contends it made an overpay ment to Adee Honey on some honey received and, therefore, does not owe the entire $602,206.

6 Mel-O did not seek enforcement of the March 2002 agreement because it paid 82¢ per pound for roughly 1.5 million pounds of honey delivered. Instead, it sued Adee Honey alleging non-performance of the June 2002 contract.
-4- increasing the price of honey by 10¢ per pound to cover losses Adee Honey would suffer due to the production shortage. By the time Mel-O grudgingly decided to accept the terms, Adee Honey instead stat ed the new price w ould be $1.55 per pound instead of $1.00 to $1.10 per pound.

In the early fall of 2002, Adee Honey began delivering honey to Mel-O at an invoice price of $1.55 per pound. Mel-O, howev er, refused to pay for this honey. By November 2002, its account was roughly $1.7 million in arrears. In November and December, Mel-O paid Adee Honey 82¢ per pound for approximately 575,000 pounds received, 3 claiming this honey fulfilled the terms of the March 2002 contract. 4 Mel-O did not pay anything for an additional 602, 206 pounds received. Mel-O admits owing $1.00 per pound on this quantity, subject to some adjustments. 5

II

Mel-O initiated this lawsuit claiming a breach of the June 2002 agreement, 6 requesting specific performance and damage s. Adee Honey counterclaimed for the7 How the jury arrived at this damages calculation is unclear. If the jury believed this honey should have been invoiced at $1.00 per pound, the resulting damages would have been $99,247.32, or an additional 18¢ per pound for 551,374 pounds. Instead, the damages awarded re present an underpayment of 13¢ per pound.

-5- balance due on Mel-O's account. Both parties unsuccessfully moved for summary judgment, and the case proceeded to a jury trial. At trial, Mel-O submitted the following evidence of damages owed: 1) its owner Curt Reiss stated it would cost an average of $1.34 per pound to replace the honey; 2) a former Mel-O employee, James Jackson, computed diminished profits ba sed on a comparison of yearly sales figures and the increased price of honey; and 3) J ackson testified as to potential accounts lost by Mel-O due to the $1.55-per-pound price insisted upon by Adee Honey.

The district court instructed the jury on the statute of frauds. The instruction stated oral contracts for the sale of goods over $500.00 are generally unenforceable. However, if the parties agree the contractexists, "Minnesota law provides that the March 2002 oral contract is enforceable, but not beyond the quantity of goods admitted by the party against whom enforcemen t is sought which, in this case, is Adee Honey." Mel-O did not object to this instru ction or request any other instructions on the statute of frauds. On the Special Ve rdict, the jury de termined Adee Honey breached the June 2002 agreement a nd the breach was not excused by force majeure or commercial impracticability. Because of this breach, the jury determined Mel-O was entitled to $235,950 for expenses and $225, 000 for lost profits. With respect to Adee Honey's counterclaim, the jury determined Mel-O breached the June contract by paying only 82¢ per pound for honey invoiced at $1.55 per pound. For this breach, the jury awarded Adee Honey $75,000. 7 Additionally, the jury determined Mel-O owed $620,206 for the 620,206 pounds of honey fo r which it had never paid.

Both parties unsuccessfully moved for judgment as a matter of law and new trial. In ruling on the post-trial motions , the district court found Mel-O had waived-6- any argument concerning the merchant's ex ception to the statute of frauds by failing to request a jury instructi on on it. Additionally, the court determined Mel-O could not satisfy the statutory standard. With respectto damages, the court upheld the jury's determinations as reasonable, despite be ing imprecise. The court rejected Adee Honey's arguments with respect to anticipatory repudiation, force majeure , and commercial impracticability, determining the jury's determinations were supported by the evidence submitted at trial. Both parties timely appealed.

III

A. The Statute of Frauds

The district court refused to grant e ither party's motion for summary judgment, a directed verdict, or other post-judgment relief on the basis of the statute of frauds. We review the district court's determinati on as to the applicability of the statute of frauds de novo. Simmons Foods, In c. v. Hill's Pet Nutrition, Inc. , 270 F.3d 723, 726 (8th Cir. 2001). A dditionally, we review de novo the district court's denial of the motions for summary judgment, directed verd ict, and for judgment as a matter of law. Top of Iowa Co-op v. Schewe , 324 F.3d 627, 631, 633 (8th Cir. 2003).

Generally, the Minnesota statute of frauds provides oral contracts for the sale of goods for $500.00 or more are unenforceable "unless there is some writing sufficient to indicate that a contract for sa le has been made between the parties and signed by the party against whom enforcemen t is sought." Minn. Stat. § 336.2-201(1). The statute is applicable because the March 2002 contractfor the sale of honey, goods priced over $500.00, was not reduced to writing and signed by Adee Honey, the party against whom enforcement was sought.

Adee Honey, however, admitted it contract ed with Mel-O for eighteen loads of honey, and this admission constitutes an excep tion to the statute. Minn. Stat. § 336.2-8 In its order denying post-trial relief, the district court erred in determining the purchase order was actually an offer, rather than a confirmation. Although some documents can be viewed as offers, see W.H. Barber Co. v. McNamara-Vivant
-7- 201(3)(b) (noting a contract otherwise within the statute may be enforced against a person who "admits in pleading, testimony or otherwise in court that a contract for sale was made," but not "beyond the quantity of goods admitted"). The jury thus was entitled to determine the March 2002 contract was enforceable for up to eighteen loads of honey.

Mel-O claims the entire quantity of 1.5 million pounds noted in its purchase order should be outside of the statute of frauds pursuant to the merchant's exception. Because Mel-O did not object to the jury instructions regarding the statute of frauds, it has not preserved this issue for appeal . Daggitt v. United Food & Com. Workers Int'l Union, Local 304A , 245 F.3d 981, 985 (8th Cir. 2001). We therefore limit our review of this issue to determine if the district court plainly erred. Id. (noting reversal is only warranted in "the exceptional case" inwhich the error "seriously affected the fairness, integrity, or public reputation of judicial proceedings") (quoting Figge Auto Co. v. Taylor , 325 F.2d 899, 907 (8th Cir. 1964)).

Under the merchant exception, Minnesota law provides:
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and suffi cient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) [regar ding the general applicability of the statute of frauds] against such party unless written notice of objection to its contents is given within ten days after it is received. Minn. Stat. § 336.2-201(2). Whether the parties have satisfied the statute of frauds is a question of law. Upsher-Smith Labs., Inc. v. Mylan Labs., Inc. , 944 F. Supp. 1411, 1425 (D. Minn. 1996). 8 To submit the claim to a jury, the district court mustContracting Co., Inc. , 293 N.W.2d 351, 355 (Minn. 1979) (finding price quotation letters insufficient to satisfy the statute of frauds generally a nd constituted "invitations to enter into a bargain"), the parties do not deny having an oral contract, at least to a certain quantity. Because an oral contract exists, we must determine whether the writing sent by Mel-O to Adee Honey cons tituted a confirmation under the merchant's exception.
-8- determine if a "writing indicates an actual tr ansaction." UFE, Inc. v. Methode Elec., Inc. , 808 F. Supp. 1407, 1412 (D. Minn. 1992) (citing Bazak Int'l Corp. v. Mast Indus., Inc. , 535 N.E.2d 633, 637-38 (N.Y. 1989)); see also Upsher-Smith Labs. , 944 F. Supp. at 1425 (noting all "that is require d is that the writing afford a basis for believing that the offered oral evidence rest s on a real transacti on"). Once the court has made this preliminary determination, a jury determines whether the parties "actually entered" into the contract. UFE, Inc. , 808 F. Supp. at 1412.

No specific form is required to meet the merchant's exception. A writing referring to a phone call be tween the parties and evidencing the type of products involved and their quantity will satisfy the statute. See id. ; Upsher-Smith Labs , 944 F. Supp. at 1425-26. However, the writing mu st be "sufficient to indicate a contract." W.H. Barber Co. , 293 N.W.2d at 356 (noting a bare list of projects was insufficient to establish a term indicating the partie s agreed a "price protection" clause).

We hold the purchase order sent by Mel-O to Adee satisfies the requirements of the merchant's exception to statute of frauds. The purchase order was sent to Adee's principal place of business in a tim ely manner, Adee had reason to know why it was sent, and Adee did not object to the terms set forth in the document. SeeBazak Intern. Corp. , 535 N.E.2d at 633-34 (" We conclude the annotated purchase order forms signed by the buyer, sent to the seller and retained without objection, fall within the merchant's exception, satisfying the statutory requirement of a writing even without the buyer's signature."); see also Thomas Printing Mach. Co. v. B.F. Goodrich Co. , 714 F.2d 744, 748 (7th Cir. 1983) (determining a party's principal place of-9- business is an adequate place to send a confirmation under the Uniform Commercial Code). Under the exception, Adee was not required to sign the document, and the presence of an ambiguous "Good Thru" date does not alter the analysis.

Once the merchant's exception has been satisfied, the district court may submit the evidence of the contract to the jury so the jury can de termine its existence and the terms. Upsher-Smith Labs. , 944 F. Supp. at 1425 (stating the party who asserts the validity of the contract "maintains the bur den of persuading the trier-of-fact a contract actually exists, as well as establishing the actual terms and conditions of that contract"). Despite Mel-O's contention othe rwise, meeting the statute of frauds does not prove the terms of the contract; meetin g the statute of frauds allows a jury to determine the issue. The court below a llowed Mel-O to present the confirmation order associated with the March 2002 contract to the jury. Based on the jury's answers on the Special Verdict, the jury rejected Mel-O's claim the March contract involved more than eighteen loads of honey. Thus, the district court did not plainly err in allowing the jury to make these determinations, and we refuse to disturb the jury's quantity determinations on appeal.

B. Force Majeure

Adee Honey next argues the district court erred in not granting its motions for summary judgment, directed verdict, and judgment as a matter of law on its force majeure defense. We review de novo. Top of Iowa Co-Op , 324 F.3d at 631, 633. Factual disputes, however, are resolved in favor of the non-moving party, and we will affirm the denial of a motion for judgment as a matter of law if a "reasonable jury could differ as to the conclusions that could be drawn" from the evidence presented at trial. Manning v. Me tro. Life Ins. Co., Inc. , 127 F.3d 686, 689-90 (8th Cir. 1997).

The June 2002 contract contains a handwritten force majeure clause. Next to the 3.2 million-pound quantity, Richard adde d: "provided production of said pounds9 Adee Honey claims the di strict court and jury's interpretation of the force majeure clause rendered the clause mean ingless. We disagree. The force majeure clause would allow Adee Honey to stop pe rformance if the jury determined a drought occurred. It would not, however, give Ad ee Honey the unilateral right to raise the price of honey under the contract simply because the production of honey was less than expected. Additionally, we reject Adee Honey' s claim that the district court's interpretation of the force majeure clause transformed the June 2002 contract into an
-10- is NOT impeded by an Act of God such as by drought or fl ood." Neither party disputes whether the clause is enforceab le or whether drought conditions occurred in the summer of 2002, potentially triggering the clause. Instead, the parties dispute the legal effect of the clause and the partie s' continuing obligations under the contract.

The effect of a force majeure clause is to excuse pe rformance in the event an unforseen circumstance occurs. See Suburban Newspapers of Greater St. Louis, Inc. v. Kroger Co. , 886 F.2d 1060, 1062 (8th Cir. 1989). The performance to be excused is determined by the langua ge of the clause. See id. According to Adee Honey, as soon as the drought occurred, it had the ri ght to cease performance under the existing contract and to enter into new agreemen ts at higher prices. Mel-O argues the force majeure clause does not give Adee Honey the unilateral right to raise the price of honey from $1.00 per pound to $1.55 per pound b ecause of the weather conditions.

The district court determined the contract language was ambiguous because questions existed as to the severity of the drought, Adee Honey's ability to meet its contractual obligations, and Adee Honey's ri ght to request add itional money for honey under the June contract. Because the force majeure clause does not include language explicitly resolving any of these issues, the district court did not err in submitting these issues to the jury. The jury de termined Adee Honey was not excused from performing the June 2002 contract, and we do not disturb these factual findings supported by the record. 9output contract. Although Adee Honey may not have produced enough honey in the summer of 2002 to satisfy all of its contractual requirements, such circumstances did not transform any of its obligations into output contracts.
-11- C. Commercial Impracticability

Adee Honey alternatively argues the di strict court should have granted its summary judgment and post-verdict motions on the grounds of commercial impracticability. We review de novo, Top of Iowa Co-op , 324 F.3d at 631, 633, resolving factual discrepancie s in favor of the non-moving party and in support of the jury's verdict. Manning , 127 F.3d at 689-90.

The Minnesota Supreme Court recogni zed the "Uniform Commercial Code provision governing excuse of performance has replaced the common-law requirement of impossibility of performance by a le ss stringent standard of commercial impracticability." Barbarossa & Sons , Inc. v. Iten Chevrolet, Inc. , 265 N.W.2d 655, 658 (Minn. 1978). Minnesota law provides:

Except so far as a seller may haveassumed a greater obligation and subject to the preceding section on substituted performance: (a) Delay in delivery or nondelivery inwhole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingenc y the nonoccurrence of which was a basic assumption on which the contr act was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or notit later proves to be invalid. (b) Where the causes mentioned in para graph (a) affect only a part of the seller's capacity to perform, the seller must allocate production and deliveries among the seller's customers but may include regular customers not then under contract as well as the seller's own-12- requirements for further manufacture. The seller may so allocate in any manner which is fair and reasonable. (c) The seller must notify the buyer s easonably that ther e will be delay or nondelivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.
Minn. Stat. § 336.2-615. Under this doctr ine, commercial impracticability excuses performance of both parties to th e contract. Barbarossa & Sons , 265 N.W.2d at 658. This defense is available if Adee Honey can show the following four factors: "(1) a contingency has occurred which has ma de performance impracticable; (2) the nonoccurrence of that contingency was a basi c assumption . . . ; (3) the seller has not assumed a greater obligation; and (4) the seller has seasonably notified the buyer that there will be a delay or nondelivery." Id. Additionally, Adee Honey must also show it made a "fair and reasonable" allocation of its inventory once the unforseen event occurred. Upsher-Smith Labs. , 944 F. Supp. at 1429.

Although the availability of the commercia l impracticability defense is a legal issue, a jury must determine whether the facts involved in the case sufficiently support such a defense. See Selland Pontiac–GMC, Inc. v. King , 384 N.W.2d 490, 493 (Minn. Ct. App. 1986) (noting the Minnesota co mmercial impracticability statute involves issues of fact); see also Barbarossa & Sons , 265 N.W.2d at 658-60 (treating the fourfactor test as four factual questions). After considering evid ence of the drought, Adee Honey's contractual obligations, and its ability to perform, the jury determined it was not excused from delivering all the honey due under the June 2002 contract. As with the force majeure defense, the jury rejected the claim it had the right to cancel the existing contract and replace it with another contract at a higher price. We find the jury's factual findings to be supported by the record below.-13- D. Anticipatory Repudiation

Adee Honey next argues its performan ce was excused as a matter of law because Mel-O committed either an antic ipatory repudiation of the contract or breached the contract without cure. These issues, raised in its motions for summary judgment and post-trial relief are revi ewed de novo, Top of Iowa Co-op , 324 F.3d at 631, 633, and the factual determinations are interpreted in the light most favorable to the jury verdict. Manning , 127 F.3d at 689-90.

Adee Honey claims Mel-O breached, anticip atorily or otherwise, by not paying money owed on its accounts, and this breachwas established when Mel-O stipulated it should have paid $1.00 per pound for 602,206 pounds of honey. An anticipatory breach is one in which "one party unequivo cally informs the other that it no longer intends to honor their contract ." Ricketts v. Adamson , 483 U.S. 1, 17 (1987) (Brennan, J. dissenting) (s tating additionally the breach must be accompanied by an "absolute and unequivocal" renunciation of all duties under the contract); see also In re Haugen , 278 N.W.2d 75, 79 n.6 (Mi nn. 1979) (defining an anticipatory repudiation as "an unconditional repudiation of a contr act, either by words or acts, which is communicated to the other party prior to the time fixed by the contract for his performance"). This case, however, involves no such "absolute and unequivocal" intent to breach the contract. Although Me l-O's account was in arrears, the evidence shows it remitted at least some payment in November 2002 and was still within the forty-five day payment window on its additional accounts. Thus, the district court did not err in denying Adee Honey's motion on this point.

Further, it is claimed Mel-O breached the June 2002 contract by not paying for the honey, and this breach constituted an uncured, material breach excusing Adee Honey's remaining performance under the contract. SeeHome Ins. Co. v. Nat'l Union Fire Ins. of Pittsburgh , 658 N.W.2d 522, 534 (Minn. 2003) (noting remedy for breach is to afford the non-breaching party th e benefit of the bargain); see also Restatement-14- (Second) of Contracts § 237 (stating an uncured breach excuses the non-breaching party's performance under the contract). In this case, however, factual questions existed as to whether both parties br eached and when those breaches occurred. Therefore, these issues were pr operly submitted to the jury. See E.L.E.S.C.O. v. N. States Power Co. , 370 N.W.2d 700, 703 (Minn. Ct. A pp. 1985) (affirming the district court's grant of a judgment as a matter of law because of the seller's uncured breach and lack of evidence regarding a possibl e breach by the buyer). After hearing evidence on the March 2002 contract, the June 2002 contract, and the weather conditions in the summer of 2002, the jury determined both parties breached the June 2002 contract. Despite Adee Honey's conten tion otherwise, the jury did not find it was an innocent seller wronged by Mel-O's failure to pay its accounts. Instead, the jury determined Adee Honey, too, breached in refusing to supply honey to Mel-O after it had not agreed to pay an additional 55¢ per pound for honey. The district court did not err in submitting these questions to the jury or in denying Adee Honey's post-trial motions.

E. Jury Instructions

Adee Honey also challenges the jury instructions given and the wording of the Special Verdict. District courts have great discretion in fashioning jury instructions, and we will not reverse a jury determinati on if the instructions "viewed on the whole, fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury." Smith v. Tenet Healthsystems, SL, Inc. , 436 F.3d 879, 886 (8th Cir. 2006) (quoting Omega Healthcare Inve stors, Inc. v. Lantis Enters., Inc. , 256 F.3d 774, 776 (8th Cir. 2001)). Give n the court's great discreti on in this area, we will not reverse unless the district court abused its discretion. Id.

Adee Honey claims the district court e rred in the wording of Special Verdict question "2.": "Did the force majeure clause in the June 2002 contract, or commercial impracticability, excuse Adee Honey from deliv ering all of the honey specified in the-15- June 2002 contract, and at the price of $1.00 per pound?" According to Adee Honey, this created a "nearly insurmountable" burden of proving the applicability of both defenses before the jury could respond "Y es." This argument, however, is without merit because the instruction allows the jury to excuse Adee Honey's obligations under the contract if the jury found facts establishing either defense, though not necessarily both of them. This instructi on is proper, and we find the court did not abuse its discretion in wording the Special Verdict question in this matter.

Adee Honey also claims error in th e court's decision to not include an instruction or Special Verdict entry regard ing anticipatory repudiation. This claim is waived because it failed to request a jury instruction on the issue as required by Federal Rule of Civil Procedure 51. Daggitt , 245 F.3d at 985. Because we determine the district court did not plainly err on this ground, we affirm the district court.

F. Damages

Finally, the parties both dispute the amount of damages awarded. Because these issues were raised in the parties' post- trial motions, we review the district court's ruling de novo while resolving all factual que stions in favor of the verdict reached. To the extent this case involves the app lication of state law, we review those determinations de novo. Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc. , 254 F.3d 706, 718 (8th Cir. 2001). We also review de novo whether a particular class of damages should have been submitted to the jury. Dairy Farmers of Am., Inc. v. Travelers Ins. Co. , 391 F.3d 936, 943 (8th Cir. 2004). Adee Honey challenges the jury's award of damages fo r Mel-O's expenses incurred as a result of its breach and lost profits attributable to not receiving the contracted quantity. Mel-O claims the jury erred in determining it owed anything to Adee Honey on honey paid for at 82¢ per pound but invoiced at $1.55 per pound, and it clai ms it is owed an adjustment on the jury's award to Adee Honey of $620,206 for 620,206 pounds of10 The definitions of incidental and cons equential damages, Minn. Stat. § 336.2- 715, however, require the buyer to make a r easonable attempt to cover to be eligible for these damages, even under the "marke t minus contract" damages formulation.
-16- honey because it had previously overpaid for honey when settling accounts not directly at issue in this case.

Under Minnesota law, incidental damage s are recoverable and include expenses reasonably incurred "in connection with e ffecting cover and any other reasonable expense incident to the delay or other br each." Minn. Stat. § 336.2-715(1). A party's failure to cover can limit a prevailing party's ability to receive such damages, including lost profit damages. See Barry & Sewall Indus. S upply Co. v. Metal-Prep of Houston, Inc. , 912 F.2d 252, 259 (8th Cir. 1990). Under Minnesota law, "[a]fter a breach . . . the buyer may 'cover' by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution of those due from the seller." Minn. Stat. § 336.2-712(1). If the purchaser covers, the buyer is entitled to receive the difference between the two prices, together with incidental and consequential damages. Minn. Stat. § 336.2-712(2). If the buyer does not cover, the party is limite d to the damages of the diffe rence between market price and the contract price, together withincidental and c onsequential damages. 10Minn. Stat. § 336.2-713(1).

In this case, the jury awarded Me l-O $235,950 in damages resulting from Adee Honey's failure to provide sufficient hone y under the June 2002 contract. It also awarded Mel-O $225,000 for lost profits. Because Mel-O did not cover, it is only entitled to damages under Minn. Stat. § 336.2-713(1). We have held, however, an injured party is not require d "to take measures which are unreasonable or impractical or which require expenditure s disproportionate to the lo ss sought to be avoided or which are beyond his financial means." Simeone v. First Bank Nat'l Assoc. , 73 F.3d 184, 189 (8th Cir. 1996) (citation omitted). The jury heard evidence regarding available honey on the market, the ability to purchase honey on the market and still-17- make a profit, the available cash on hand to purchase cover honey, and Mel-O's existing contractual obligations. The jury's award of incidental and consequential damages, then, must be based on its fi nding cover was not reasonable at the time. Further, the award of $235,950 is supported by evidence presented establishing a market price between $1.34 per pound and $1.70 per pound at the time Adee Honey breached. The jury determination supports Mel-O's theory Adee Honey owed Mel-O roughly 34¢ per pound on honey not delivered under the contract.

With respect to lost profits, Mel-O bear s the burden of showing the profits were foreseeable at the time of contracting. Hydra-Mac, Inc. v. Onan Corp. , 450 N.W.2d 913, 920 (Minn. 1990). "The focus is on what the seller had reason to know," Simeone , 73 F.3d at 188, and a damages calculation based purely on speculation is not recoverable at law. Lassen v. First Bank Eden Prarie , 514 N.W.2d 831, 839 (Minn. Ct. App. 1994). Significant evidence was presen ted at trial regarding lost profits, lost accounts, lost future accounts, and other types of damages. Although this evidence was not introduced through an expert witn ess, the witnesses who did testify were familiar with Mel-O and its accounts. Accord ingly, the district court did not err in denying Adee Honey's post-trial motions.

Finally, we refuse to adjust downward the finding of the jury in which Mel-O should have paid $620,206.00 on the 620, 206 pounds of honey for which it did not pay. It claims this figure should be reduced to $603,904.84 due to an earlier overpayment made to Adee Honey. The damages award rendered, however, need not match any certain projected number provided the award falls within the mathematical limitations set forth by the witnesses and th e trial evidence as a whole. Children's Broad. Corp. v. Walt Disney Co. , 357 F.3d 860, 865 (8th Cir. 2004). Mel-O could only have overpaid its accounts if the jury believed the March 2002 contract was for 1.5 million pounds of honey, a claim it apparently rejected. Because the jury's determination Mel-O owed $1.00 per pound for honey is within the mathematical-18- limits set forth by the evidence at trial, the district court did not err in denying its posttrial motions.

IV

Accordingly, we affirm.



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