Jamestown Farmers Elevator Inc. v. General Mills Inc‪.‬

Order ON PETITION FOR REHEARING Appellant Jamestown Farmers Elevator requests a rehearing on the issue of cover, suggesting that this court overlooked the district court's erroneous failure to submit any instruction whatsoever on that issue despite the presence of a genuine question of fact on the matter. Appellant points to language in our opinion, 552 F.2d 1295 n.10, which could be taken to mean that we mistakenly concluded that the issue was submitted to the jury. The district court correctly denied appellant's requested instruction to the effect that appellant had established General Mills' cover as a matter of law. That was the only alleged error relating to the cover issue ever objected to in the district court or in this court. Although, as we noted in our opinion at p. 1295 n.10, the district judge commented that he believed there was a jury question on the cover issue, appellant never requested as an alternative that the factual issue of ""cover"" be submitted to the jury for its determination.