The opinion
ALVIN B. RUBIN, Circuit Judge,
dissenting.
I cannot agree that there was no factual dispute concerning the December 8, 1980 telephone conversation between Smith and Cox. Nor can I agree that, if we accept the defendants’ version of that conversation, its “gist” is the same. There was a factual dispute concerning the conversation, it was material and its resolution was an issue for the jury. For these reasons, I respectfully dissent from the majority’s conclusion that the district judge properly granted plaintiff a judgment notwithstanding the verdict.
The case turns on when defendants breached the contract. The majority concludes that this happened during the December 8th conversation because Smith then positively and unconditionally repudiated the contract.
Smith, however, testified that he did not repudiate the contract in that conversation. Although he testified that he stated their delivery would be short, he also testified that he agreed with plaintiff to meet several days later to settle the contract. He considered the conversation merely a prelude. Although he did make damaging admissions on cross-examination, the jury was entitled to credit the account of the conversation he gave on direct examination.
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc), requires that we consider both the evidence and all reasonable inferences that may be drawn from it in the manner most favorable to the party with whom the jury agreed, and forbids us, as the majority does, to adopt the version most favorable to the party whom the fact finder did not credit. In the appendix, I set forth excerpts from Smith’s testimony that seem to me sufficient to sustain the jury’s verdict.
APPENDIX
The witness is Michael Smith, on direct examination. Transcript pp. 82-84.
Q. Tell us then on December 8th what happened in a relationship to your conversation with Mr. Cox and how you produced on your contract.
A. Well, I called him and told him that we’d finished cutting our beans and wanted to set up a date, you know, that we could go down and get with him and, you know, settle up our contract, at which time he told me that all of our beans hadn’t come in from Gulf Grain. And at that time he said he didn’t know and he would get back in touch with me when they did come in and we could get down. And he just never did. As soon as he hung up the phone he was burning it, I reckon.
Q. Pardon?
*902 A. I said as soon as he hung up the phone he was burning it trying to sell them, I reckon.
Q. Did he ever call you and tell you that?
A. No, sir.
Q. Did he tell you on December 8th that he was going to purchase beans for Louis Dreyfus to fulfill your contract?
A. No, sir, he didn’t.
Q. When is the first time that you knew that he had done that?
A. On the 12th of December.
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Q. All right, sir. Did you authorize him to sell or purchase beans to supply your contract on December 8th?
A. No, sir.
Q. Have you at any time authorized him to purchase beans to fulfill your contract at any time?
A. No, sir.
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On cross examination. Transcript pp. 104-106.
Q. And let me talk with you very briefly about that phone conversation on the 8th.
A. Go ahead.
Q. That was you, wasn’t it, that called Mr. Cox?
A. Yes, sir.
Q. And that was early in the morning?
A. Yes, sir.
Q. At 7:45 A.M. In fact it was before the prices on the Chicago Board of Trade opened for the day?
A. Yes, sir.
Q. And you told him you’d finished cutting beans, is that correct?
A. Yes, sir.
Q. What else did you tell him?
A. We had a — we talked about the beans that were over at Gulf Grain and everything.
Q. Did you know how much was over at Gulf Grain then to be cleaned?
A. There were three loads.
Q. Three truckloads?
A. Yes, sir.
Q. So a couple of thousand bushels at most?
A. Yes, sir.
Q. Twenty-five hundred bushels at most?
A. Yes, sir.
Q. Did you discuss anything else?
A. No, sir.
Q. Do you recall stating in that phone conversation to Mr. Cox you wanted to pay up?
A. I didn’t say that.
Q. You never said that?
A. No, sir.
Q. When you called did you intend to convey the message to him that you wanted to pay him?
A. I said that we would get together and settle up when they got everything in.
Q. Now you knew you were short on your deliveries?
A. Yes, sir.
Q. Very short?
A. Yes, sir.
Q. But it’s your testimony now that you never said you wanted to pay up?
A. No, sir, I never did say that.
Q. Never said that? You’re absolutely certain about that?
A. Yes, sir.
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Continuing the cross examination, plaintiff’s counsel questions Smith about his deposition. Transcript p. 106.
Q. Do you remember my asking you back then about that phone conversation?
A. Yes, sir.
Q. What was your answer at that time?
A. I reckon it was the same thing I said now.
*903 Q. You didn’t say then you wanted to pay up, is that correct?
A. I believe I said “settle up.”
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The deposition is handed to Smith. Plaintiffs counsel asks some preliminary questions. Then the questioning continues. Transcript p. 107.
Q. All right. The next question I asked was: “What was your purpose in calling him?” Now this was back on the 2nd day of October, 1981, this was down in my office, and your answer at that time was the following: “I called him and was going to see if we could settle our contract. We was, you know, going to pay up. He told me he didn’t have all the beans in and stuff and wait three or four days and he’d call me back.” Now is it your testimony today you didn’t tell him you were going to pay up?
A. Well, I must have did if that’s what I said.
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On redirect, Transcript p. 141, Smith testified:
Q. You were asked on cross examination, particularly from Pages 20 and 21 of the deposition, about having told Mr. Cox that you would come down or either that you would come down and pay up. Tell the Jury what you meant when you said that to Mr. Cox.
A. What I meant when I said it?
Q. Yes, sir.
A. Well, he was going to call me back when all of our stuff got in from Gulf Grains, all of our beans and everything was in, and we were going to get together and either pay him or him pay us what the difference was on our contracts that we were short on.