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Keywords

contractplaintiffdefendantdamagestestimonyplea
contractplaintiffdefendantpleacomplianceappellee

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Barnwell & Hays, Inc. v. Sloan, 564 F.2d 254, 24 Fed.R.Serv.2d 246, 22 UCC Rep.Serv. 892

Facts

On February 21, 1973, Glen T. Sloan contracted to sell all cotton grown on his farm to Stone Cotton Company, which later assigned its interest to Barnwell & Hays, Inc. Sloan delivered the contracted cotton until December 1973, when he informed Stone that his cotton gin had burned down. During a conversation, Sloan claimed that Stone agreed that delivering additional bales would fulfill the contract, a claim Stone denied. After delivering more bales, Sloan sold additional cotton to other buyers at higher prices, prompting Barnwell & Hays to sue for damages for the undelivered bales.

On February 21, 1973 defendant-appellee Glen T. Sloan, a cotton farmer, contracted to sell all the cotton grown on two hundred acres during the crop year 1973 to Stone Cotton Company.

Issue

Did the district court err in allowing the defendant to introduce evidence of an affirmative defense of waiver, and was the alleged waiver enforceable without being in writing or supported by consideration?

Did the district court err in allowing the defendant to introduce evidence on the affirmative defense of waiver, because it was not raised in the pleadings, and was the alleged waiver not in writing and not supported by consideration?

Rule

The failure to use the specific term 'waiver' in a pleading does not preclude the raising of an affirmative defense if the opposing party is sufficiently apprised of the intention to rely on that defense. Additionally, under Arkansas law, no consideration is required to support a waiver or modification of a contract.

The failure to use this specific terminology, however, does not necessarily mean that the answer did not raise the affirmative defense.

Analysis

The court found that the defendant's reference to a 'verbal agreement' in his answer was sufficient to inform the plaintiff of his intention to assert this as a defense. The court noted that the plaintiff had introduced testimony that contradicted the defendant's claim, indicating that they were not surprised by the defense. Furthermore, the court ruled that the absence of a written agreement or consideration did not invalidate the defendant's claim of waiver under Arkansas law.

In this case, it is clear that the allegation of a 'verbal agreement' in the answer was sufficient to apprise the plaintiff of defendant's intention to rely on this transaction as a defense.

Conclusion

The court affirmed the judgment in favor of the defendant, concluding that the introduction of the waiver defense was appropriate and that no consideration was necessary for its enforcement.

The judgment is affirmed.

Who won?

Defendant, Glen T. Sloan, prevailed because the court found that he adequately raised the defense of waiver and that Arkansas law did not require consideration for such a defense.

Defendant Glen T. Sloan delivered to Stone Cotton Company, Inc., 231 bales of cotton pursuant to said agreement mentioned above, and defendant states that such delivery constituted complete compliance and fulfillment of the agreement between the parties as modified by a verbal agreement entered into on or about December 8, 1973.

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