Farmers Co-op. Elevator Co. of Revillo v. Johnson

• Decision Date: 15 January 1976
• Docket Number: No. 11546,11546
• Citation: 90 S.D. 36,237 N.W.2d 671
• Parties: FARMERS COOPERATIVE ELEVATOR COMPANY OF REVILLO, Plaintiff and Respondent, v. Evan Lee JOHNSON, also known as Steve Johnson, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 671

237 N.W.2d 671

90 S.D. 36

FARMERS COOPERATIVE ELEVATOR COMPANY OF REVILLO, Plaintiff and Respondent, v. Evan Lee JOHNSON, also known as Steve Johnson, Defendant and Appellant.

No. 11546.

Supreme Court of South Dakota.

Jan. 15, 1976.

Gunderson & Gunderson, and Dennis D. Evenson, Clear Lake, for appellant.

Austin, Hinderaker & Hackett, Watertown, for respondent.

WINANS, Justice.

A jury in circuit court found the defendant Evan Lee Johnson, a/k/a Steve Johnson, liable to the plaintiff elevator company for more than fourteen thousand dollars. Defendant who represented himself at trial, failed to plead specifically the statute of frauds and made no objections to the jury instructions before the close of trial. He now contends that the statute of frauds is a bar to action, that he pled it sufficiently and that a jury instruction was improper and substantially prejudiced his case. Having considered at length all issues raised by the defendant on appeal we find no reason to reverse the lower court and we therefore affirm.

Ellsworth Johnson, manager of Plaintiff elevator company, alleged that Steve Johnson, defendant, entered the elevator offices on May 7, 1973, and asked for a bid on corn. He quoted $1.42 per bushel to him with an August delivery. He testified that on May 8. 1973, Steve Johnson returned and said 'mark it down.' Introduced into evidence was a small notebook with this notation on one page: '5/8/73--Steve Johnson 26000 corn--142--Aug'. There are no signatures on this memorandum. Plaintiff alleges that at the time of the purported sale and in reliance thereon it in turn sold 26,000 bushels of corn to the Bunge Corporation at $1.62 for delivery at Port Bunge in August, 1973. On August 1, 1973, Plaintiff notified Defendant that his corn was due and Defendant is said to have responded that he was not going to deliver it. After further refusals by Defendant, Plaintiff elevator purchased 26,000 bushels of corn on the open market and claimed to have sustained a net loss in covering its contractual obligation of $14,154.48. Around August 1, 1973, cash price for corn was between $2.15 and $2.30 per bushel. Apparently Defendant sold his corn to the Nassau Farmers Elevator and denied entering into any contract to sell and deliver corn to Plaintiff.

Plaintiff brought this action against Defendant for breach of contract and for fraud. Defendant consulted one or two attorneys and had one draw up an answer to the complaint but Defendant did not choose to retain this attorney for further services. Instead, he elected to represent himself at trial. His answer denies allegations of breach of contract and of fraud and further states '(t)hat at no time on no occasion did the Defendant herein enter into a contractual obligation, either written or oral, at any elevator or any market for the Defendant's shelled corn until the later part of July when the Defendant herein sold and delivered the corn in question to the Nassau Farmers Elevator at Nassau, Minnesota.' There is no specific pleading here of the statute of frauds although Defendant would like to have his denial of a written contract interpreted as such. A trial was held in circuit court in Grant County on April 30, 1974, and May 1, 1974, and at its conclusion the jury found for the plaintiff.

Defendant through retained counsel on appeal contends that this action is barred by our statute of frauds and hence the verdict of the jury is a nullity.

SDCL 57--3--1 reads 'Except as otherwise provided in §§ 57--3--2 and 57--3--3 a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this section beyond the quantity of goods shown in such writing.'

SDCL 57--2--10 defines as 'goods' all things movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action. It specifically includes as 'goods' growing crops. Thus it is clear that the statute of frauds as found in our state law and taken originally from the Uniform Commercial Code 2--201 applies to the transaction in question. (See Sacred Heart Farmers Co-operative Elevator v. Johnson, 1975, Minn., 232 N.W.2d 921, a case with facts and names similar to the instant case wherein the statute of frauds, Minn.St. 336.2--201, was found to apply in a purported corn sale).

Acknowledging that the South Dakota statute of frauds is applicable to the subject matter before us, we must ask whether or not it must be pleaded specifically and if so whether or not this was done. SDCL 15--6--8(c) states in part:

'In pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of frauds * * * and any other matter constituting an avoidance or affirmative defense.'

Fales v. Kaupp, 1968, 83 S.D. 487, 161 N.W.2d 855, is a case for breach of contract. In that case, on appeal defendants urged that plaintiff-respondent had waived his right to a certain greater amount of money. There we said:

'While plaintiff's evidence can be viewed as making this issue a fact question there is present a basic reason which prevents us from determining it. Waiver was not an issue in the trial court. It was not pleaded. This is required by RCP 8(c). (now SDCL 15--6--18(c)). Nor was it presented to the jury as an issue by the court's instructions. Consequently, it is not before us. Breckweg v. Knochenmus, 81 S.D. 244, 133 N.W.2d 860. Issus may not be presented for the first time on appeal.'

Waiver, like statute of frauds, is an affirmative defense which must be pleaded in this state under SDCL 15--6--8(c). (6 SDCL Appendix of Forms sets out an illustrative answer presenting defenses including as the Fourth Defense one of the affirmative defenses provided for in § 15--6--8(c).) In accord with the foregoing decision in Fales we are persuaded that the issue of the statute of frauds is not properly before this court as a bar to this action because it simply was not pleaded. Our law requires that it be pleaded as a defense Affirmatively. This certainly requires more than a general denial of the complaint or even the ambiguous reply couched in a double negative and a negative pregnant that there was no written contract. Defendant had a duty to plead this defense in order to claim its protection and, having failed to do so, he cannot now retry his case on appeal. An affirmative plea in this situation must at least state that the subject matter of the complaint falls within the provisions of SDCL 57--3--1 and assert that there is no writing covering the matter in question and signed by the party charged.

Defendant's counsel further contends that because Defendant at trial chose to represent himself, and was therefore presumably less adept at protecting his interests than would have been a member of the bar, the judge was allowed without any objection made on Defendant's part to present an erroneous instruction to the jury. The Instruction in...