Plaintiff, Cargill, Inc., appeals the trial court's grant of judgment in favor of defendant, Frank Weston, on its claim for damages for breach of a contract to deliver soybeans. Weston, an Arkansas farmer who owns 156 acres and rents about 800 acres for his farming operation, began in 1972 to buy, sell and store grain in bins on his farm under the name of Weston Elevator Company. The parties contracted September 5, 1972, for the delivery of 20,000 bushels of # 1 yellow soybeans to be delivered in October and November, 1972, at a contract price of $3.35 per bushel. The contract was accepted "Weston Elevator by Frank Weston."

Due to unprecedented weather conditions in the South-Central United States during the fall and winter of 1972, Weston was unable to harvest a substantial portion of the soybeans he had planted on his own land. However, during October and November, 1972, he did deliver over 20,000 bushels of soybeans to another grain firm on contracts entered into after the Cargill contract. Those beans were obtained from other producers and were not raised by him. On November 30, 1972, the last date for performance under the original contract, Weston had not delivered 18,463 bushels. The market price at that time was $3.69 a bushel, which would have established damages in the amount of $6,277.42.

Many of the sellers under contract with Cargill were experiencing similar difficulties fulfilling their contracts during this same period of time. It is undisputed that during this same period the price of soybeans was beginning its rise to record heights. Instead of cancelling all these contracts when the time for performance passed and covering in the market, Cargill mailed extension agreements to the sellers in which it agreed to extend the delivery dates for an additional 30 days. Weston never excuted any of these extension agreements mailed by Cargill.

The first personal contact between Weston and Cargill was sometime in January, 1973. At that time it was Cargill's understanding that Weston wished additional time to perform, though Weston denies ever requesting any extension. His position was, however, that all beans harvested by him from his own and rented lands would be delivered to Cargill at the contract price. A personal visit was made to Weston January 31, 1973, by Allen Housh, Memphis Manager for Cargill, as evidenced by his letter of February 1, 1973, to Weston.1

Deliveries of soybeans were made by Weston in December, January, March and April, for which he was paid the contract price. There remained 10,585 bushels of soybeans undelivered on the contract on May 31, 1973, the date Cargill cancelled the contract pursuant to its receipt of a letter from Weston.2 The market price at that time was $10.48 per bushel and Cargill sought damages of $75,471.05 for Weston's breach.

The case was tried to a jury and submitted on special interrogatories.3 According to the jury's answers Cargill was entitled to judgment based upon the market price April 19, 1973. However, the trial court instead of promptly approving the form of judgment as contemplated by Fed.R.Civ.P. 58, entered judgment for Weston, apparently based on its belief that there was insufficient evidence to support the jury's finding that there was an extension agreement between the parties.4 Cargill appeals.

The parties have stated the question on appeal as being whether judgment notwithstanding the verdict was properly granted. While the trial court's action had the same effect as a judgment n. o. v., it is clear that judgment n. o. v. was not granted nor could it have been granted on the present record. The requisites for the grant of judgment n. o. v. pursuant to Fed.R.Civ.P. 50(b)5 are absent here. First, there was no motion for judgment notwithstanding the verdict on behalf of Weston. Second, there was no motion for directed verdict at the close of all the evidence. Both are requisites for the court's action in setting aside a jury verdict upon grounds of the insufficiency of the evidence. Tsai v. Rosenthal, 297 F.2d 614, 618 (8th Cir. 1961); 5A Moore's Federal Practice P 50.08 (2d ed. 1974) (hereinafter cited as Moore).

It is therefore clear that the judgment entered on behalf of Weston cannot stand. See Compton v. United States, 377 F.2d 408, 412 (8th Cir. 1967). While the unusual procedural posture of this case presents some conceptual difficulty in determining the proper disposition of this appeal, we believe it is appropriate to treat this case as involving an erroneous grant of judgment notwithstanding the verdict. In such a case there are three generally recognized options for disposition of the appeal. The jury verdict may be ordered reinstated. Compton v. United States, supra at 412; Hansen v. Firestone Tire & Rubber Co., 276 F.2d 254, 255 (6th Cir. 1960); 5A Moore P 50.14 at 2383; 9 C. Wright & A. Miller, Federal Practice & Procedure § 2540 at 614 (1971) (hereinafter cited as Wright & Miller ). The case could be remanded for the trial court's consideration in light of our disposition of the judgment entered for Weston, Iacurci v. Lummus Co., 387 U.S. 86, 88, 87 S. Ct. 1423, 18 L. Ed. 2d 581 (1967); 5A Moore P 50.14 at 2383-84; 9 Wright & Miller § 2540 at 615, or a new trial can be ordered. Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 328, 87 S. Ct. 1072, 18 L. Ed. 2d 75 (1967); Derr v. Safeway Stores, Inc., 404 F.2d 634, 639 (10th Cir. 1968); 5A Moore P 50.14 at 2383; 9 Wright & Miller § 2540 at 615.

We believe the proper disposition is to order a new trial of this action. The trial court clearly indicated its belief that the jury's verdict was erroneous and that Cargill's actions in attempting to extend the contract were unconscionable. Pursuant to Fed.R.Civ.P. 59(d), it could have sua sponte ordered a new trial within 10 days of entry of judgment without motion of the parties. Moreover, a new trial is appropriate in this case since it has proceeded since inception, through trial and appeal, with the failure by the parties to recognize that the dispute is governed by provisions of the Uniform Commercial Code.6 Proper resolution of this case turns upon difficult questions arising under the Code, including but not limited to the question of whether Weston is a "merchant", see Ark.Stat.Ann. § 85-2-104; Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965), or whether the statute of frauds was satisfied by the alleged extension agreement, see Ark.Stat.Ann. § 85-2-201. These questions were unrecognized or ignored by the parties throughout this lawsuit.

Furthermore, this court has been hampered by the appellant's failure to prepare an appendix in compliance with Fed.R.App.P. 30(a).7 At one time we would have found it inconceivable that parties would expect appellate review of a contract case involving difficult questions of law arising under the Uniform Commercial Code without an attempt to brief those questions and without so much as including a copy of the contract in the appendix. Proper concern for their clients' interests should have led counsel in this case to adequately address the issues involved and a proper respect for the rules of procedure evolved for the orderly and speedy disposition of litigation would dictate that they be followed. We trust that the inadequacies identified in this opinion will not arise upon retrial of this case.

The judgment is reversed and the cause remanded to the District Court with directions to grant a new trial.