Leo's Enterprises, Inc. v. Hollrah, WD
| Decision Date | 26 March 1991 |
| Docket Number | No. WD,WD |
| Citation | 805 S.W.2d 739 |
| Parties | LEO'S ENTERPRISES, INC., d/b/a Johnson County Livestock Market, Appellant, v. Harold HOLLRAH, Respondent. 43409. |
| Court | Missouri Court of Appeals |
Thomas J. Fritzlen, Kansas City, for appellant.
L. Clay Barton, Oak Grove, for respondent.
Before TURNAGE, J., LOWENSTEIN and BRECKENRIDGE, JJ.
Plaintiff-appellant Leo's Enterprises, Inc., d/b/a Johnson County Livestock Market ("JCLM") appeals the trial court's judgment in favor of defendant-respondent Harold Hollrah in JCLM's cause of action for an unpaid debt for the purchase of cattle.
At trial, JCLM alleged that Hollrah owed money for cattle purchases made in 1982 on January 2, March 27, May 8, May 22, July 17 and August 21. JCLM's bookkeeper and general manager, Todd Ratty, was JCLM's only witness. Ratty was not employed by JCLM at the time the disputed purchases were made, but he was allowed to testify as custodian of JCLM's business records.
Ratty explained procedures used to record sales transactions. First, when a seller brings his livestock to JCLM, the number and description of livestock are recorded on a check-in sheet, which bears the seller's name. During a sale, JCLM prepares a weight ticket, which contains the seller's name and selling number. When the sale is completed, the buyer's name and purchase price are added to the weight ticket.
JCLM then prepares a buyer's bill and a seller's bill from the weight ticket. The buyer's bill shows the date of sale, name or number of buyer, pen number, tag number, description of livestock, weight, price and amount of sale. The seller's bill contains the same information.
JCLM often designated buyers by assigning them numbers. People who bought frequently or regularly over a long period of time often preferred to have a number or sequence of numbers assigned to them. On the buyer's bill the space marked "sold to: __________________," would often be filled by a buyer's number rather than his name.
JCLM contends that Hollrah bought the cattle, but never paid. Hollrah was not present at any of the purchases, but JCLM argues that Mike Morgan, the actual buyer, was Hollrah's agent. JCLM's evidence of agency is that the buyer numbers reflected on the buyer's bills were really assigned to Hollrah. Mr. Morgan testified he was acting independently in his capacity as a livestock dealer when he purchased the cattle. Morgan also testified that the buyer numbers were his, not Hollrah's, and that they merely reflected to whom he intended to resell the cattle. He further testified that he had been paid by Hollrah for the disputed cattle purchases. Canceled checks from Hollrah to Morgan were admitted into evidence.
JCLM's first point on appeal is that the trial court erred admitting the canceled checks from Hollrah to Morgan over JCLM's objection, since the defendant's failure to raise payment as an affirmative defense had resulted in a waiver of that defense.
The standard of review in a court-tried case is that the trial court's action will be affirmed "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Rule 55.08 requires payment to be plead as an affirmative defense. Failure to pled an affirmative defense constitutes a waiver of the defense. Detling v. Edelbrock, 671 S.W.2d 265, 271 (Mo. banc 1984).
JCLM pled that "plaintiff sold...
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