Carson-Mitchell, Inc. v. Macon Beef Packers, Inc.
| Decision Date | 29 November 1976 |
| Docket Number | INC,No. KCD,CARSON-MITCHEL,KCD |
| Parties | , Plaintiff-Respondent, v. MACON BEEF PACKERS, INC., Defendant-Appellant. 27796. |
| Court | Missouri Court of Appeals |
William D. Powell, Porter, Sprick & Powell, Columbia, for defendant-appellant.
J. David Collins, Collins & Grimm, Macon, for plaintiff-respondent.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
Carson-Mitchell, Inc., brought suit against Macon Beef Packers, Inc., to recover the balance due for engineering services. The court entered judgment on a jury verdict in favor of Carson-Mitchell for $3,842.15.
On this appeal Macon contends the court erred in overruling its motion for directed verdict made at the close of plaintiff's evidence and in overruling its motion to have verdict and judgment set aside and to have a judgment in accordance with the motion for directed verdict because Carson-Mitchell was barred as a matter of law from recovery. The second ground urged by Macon is the refusal to give an instruction. Affirmed.
Carson introduced evidence to show that its owner, Chester Carson, was a registered engineer and at the request of Macon, he had prepared plans for the renovation of a building in which Macon was going to perform slaughter and meat packing operations. Macon made no objection to any services performed by Carson, but delayed payment because of its inability to obtain a small business loan. After waiting almost two years, Carson brought suit for the balance due.
Macon raised the defense that Carson-Mitchell, Inc. was not authorized as a corporation to practice professional engineering under Chapter 327, RSMo 1969. Macon's pretrial motion on this ground was overruled, and at the close of plaintiff's evidence, Macon filed a motion for directed verdict on the same ground. This too was overruled.
At the conclusion of Carson's evidence, Macon introduced evidence. No motion for directed verdict was filed at the close of all the evidence.
Following the entry of judgment on the jury verdict in favor of Carson, Macon filed a 'motion to have verdict and judgment set aside and to have judgment in accordance with the motion for directed verdict.' Coupled with this motion was a motion for new trial. On this appeal, Macon contends the court erred in overruling the motion to have the verdict and judgment set aside. The motion filed by Macon was intended to be a motion for judgment notwithstanding the verdict as authorized by Rule 72.01(b). However, the motion authorized by Rule 72.01 refers to a motion for a directed verdict made at the close of all the evidence. The rule requires the motion for verdict to be made at the close of all the evidence because a motion for directed verdict made at the close of the plaintiff's evidence is waived when the defendant thereafter puts on evidence. Garvis v. K Mart Discount Store, 461 S.W.2d 317, 320(1) (Mo.App.1971).
Macon does not present a point which can be reviewed since it did not file a...
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...of section 327.461 as an affirmative defense to the enforcement of the contract is a question of law. Carson-Mitchell, Inc. v. Macon Beef Packers, Inc., 544 S.W.2d 275, 276 (Mo.App.1976). As such, "[w]e independently evaluate whether the trial court properly declared or applied the law to t......
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