Semo Grain Co. v. Oliver Farms, Inc.

• Decision Date: 07 November 1975
• Docket Number: No. 9852,9852
• Citation: 530 S.W.2d 256
• Parties: 18 UCC Rep.Serv. 668 SEMO GRAIN COMPANY, Respondent, v. OLIVER FARMS, INC., Appellant.
• Court: Missouri Court of Appeals

Page 256

530 S.W.2d 256

18 UCC Rep.Serv. 668

SEMO GRAIN COMPANY, Respondent, v. OLIVER FARMS, INC., Appellant.

No. 9852.

Missouri Court of Appeals, Springfield District.

Nov. 7, 1975.

Hux & Green, Sikeston, for respondent.

Dwight Crader, Sikeston, for appellant.

Before BILLINGS, C.J., and STONE and TITUS, JJ.

BILLINGS, Chief Judge.

Breach of contract for sale of soybeans. A jury was waived, and the court found the defendant had breached the contract and entered judgment for the plaintiff for.$93,750. We affirm.

In March, 1972, the defendant, a farming corporation, entered into a written contract whereby it agreed to sell to plaintiff, a grain dealer, 75,000 bushels of No. 1 yellow soybeans at $3.10 per bushel. Delivery of the soybeans by the defendant was to be made at plaintiff's elevator during January, 1973. Nothing in the agreement required the defendant to grow the soybeans on any certain lands, and, for that matter, defendant was not obligated to grow the soybeans.

From various farms defendant either owned or rented, 19,855 bushels of soybeans were produced and harvested. These soybeans were sold by the defendant to other grain purchasers for prices in excess of $3.10 per bushel. The defendant did not deliver any soybeans to the plaintiff. ¹

Plaintiff filed this suit in February, 1973, seeking to recover the difference between the contract price and market price of soybeans as of January, 1973. Defendant's answer, a general denial of plaintiff's petition, was filed in March, 1973. Trial was held October 8, 1973, and the court took the case under advisement. In December, 1973, defendant filed a motion seeking to file an amended answer in which it alleged it was excused from performing the contract by reason of adverse weather conditions pursuant to § 400.2--613 and § 400.2--615, RSMo 1969. Thereafter, the court overruled this motion of the defendant and made findings of fact and conclusions of law in support of the judgment entered for the plaintiff.

At the trial the defendant attempted to show that heavy rainfall during the growing season of 1972 was the reason why it failed to perform the contract. According to defendant's president 3500 acres of soybeans were planted but excessive rainfall destroyed all but 1500 acres of the crop and resulted in a harvest of only 19,855 bushels. He acknowledged defendant did not give plaintiff any notice the contract would not be performed and admitted the soybeans produced by the defendant were sold to other grain dealers for prices higher than that specified in the agreement with the plaintiff.

Plaintiff's objections to defendant's evidence concerning its excuse for nonperformance of the agreement were sustained by the court as being beyond the scope of the issues framed by the pleadings and thus not relevant.

The defendant contends it was excused from performance because of 'casualty to identified goods' due to 'bad weather conditions' and in support of this contention cites § 400.2--613 of the Uniform Commercial Code. In opposition to this proposition the plaintiff asserts any excuse relied upon by the defendant to escape liability under the contract was an affirmative defense and was not pleaded; that any evidence in support of an affirmative defense was properly excluded as not being relevant; and, in any event, defendant's excuse does not fall within the provisions of the Uniform Commercial Code relied upon by the defendant. As we will shortly demonstrate, we agree with the plaintiff and conclude the trial court correctly entered judgment for the plaintiff.

Matters seeking avoidance of a valid contract are affirmative defenses which must be set out in the pleadings. Rules 55.01, 55.08; Forty Four O One Hampton Realty Co. v. Keegan, 426 S.W.2d 701 (Mo.App.1968). The defendant's general denial placed in issue all material allegations contained in plaintiff's petition necessary to support plaintiff's claim, and the defendant was entitled to prove any fact which tended to show plaintiff's cause of action never had any legal existence. Farley v. Farley, 181 S.W.2d 671 (Mo.App.1944). However, where the defendant '(I)ntends to rest his defense upon some fact not included in the allegations necessary to support the plaintiff's case (then) he must plead the same specially or affirmatively in his answer as a condition to the admissibility of such evidence at the trial.' Farley v. Farley, supra at 673. Defendant's attempted assertion of its excuse for nonperformance is clearly an affirmative defense, '(T)hat is, a defense resting on facts not necessary to support plaintiff's case.' Wilson v. Motors Ins. Corp., 349 S.W.2d 250, 253 (Mo.App.1961). Here, the defendant's failure to affirmatively plead excuse warranted the exclusion of evidence relating thereto. Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973); John Deere Co. v. Davis, 335 S.W.2d 686 (Mo.App.1960).

This brings us to consideration of defendant's claim the trial court committed reversible error in denying the proposed amendment to its answer.

We recognize Rule 55.33 allows for liberality in the amendment of pleadings, but are also aware that the disposition of a particular motion to amend remains wholly within the discretion of the trial judge and his decision '(I)s not to be questioned on appeal unless there is a clear abuse of discretion.' State ex rel. Thomas v. Wolfsberger, 519 S.W.2d 559, 560 (Mo.App.1975). In the case before us there is no doubt but that the defendant had knowledge of the facts upon which the proposed affirmative defense was based for more than six months before its answer, a general denial, was filed. Seven months passed and the parties went to trial on the issues joined by plaintiff's petition and defendant's answer. Defendant's claim of excuse for nonperformance first appears in the transcript after the plaintiff had presented its evidence in support of the petition. ² Even then the defendant delayed making a motion which specified the nature of the proposed amendment to its answer until several weeks after all the evidence had been presented and the case was in the bosom of the court.

In a similar situation, where the defendant went to trial on a general denial of plaintiff's petition for breach of a contract for sale of hay to the defendant and the defendant complained he should have been permitted to assert an affirmative defense by amendment, the court in Kallenbach v. Varner, 502 S.W.2d 446 (Mo.App.1973), held there was no abuse of discretion by the trial court in denying the amendment. In the circumstances presented in this case we cannot convict the experienced trial judge of an abuse of discretion in denying defendant's motion to amend its answer to allege the affirmative defense. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696 (Mo.1971).

Aside from the foregoing, the defendant earnestly argues that it is exonerated from liability because of the Uniform Commercial Code. In support of this position defendant relies on § 400.2--613 and § 400.2--615 and says that if the parties contemplate a sale of all or a certain part of the crop of a particular tract of land, and by reason of drought or other fortuitous event, without fault of the seller, the crop of that land fails or is destroyed, nonperformance is to that extent excused. As additional authority, defendant cites the case of St. Joseph Hay and Feed Co. v. Brewster, 195 S.W. 71 (Mo.App.1917), which antedated the Uniform Commercial Code.

The difficulty...