finding a party was not entitled to judgment in his favor on a breach of contract action when he failed to prove the existence of an enforceable contract between the parties
How later courts described this case
- finding a party was not entitled to judgment in his favor on a breach of contract action when he failed to prove the existence of an enforceable contract between the parties
- finding a party was not entitled to judgment on a breach of contract action when he failed to prove the existence of an enforceable contract
- contract between unlicensed contractor who paid a licensed contractor to obtain a permit for unlicensed contractor was illegal where sole purpose of agreement was to circumvent city’s requirement that only licensed contractors could obtain a permit and in light of city ordinance specifically prohibiting the agreement
- where issue of illegality of agreement was not pled as required but was tried by implied consent
Written by the judges who cited it.
The opinion
GRIMM, Judge,
dissenting.
I respectfully dissent.
Plaintiff filed an answer to defendant’s amended counterclaim. After admitting and denying specific allegations, the answer continued:
AFFIRMATIVE DEFENSE
Defendant’s Amended Counterclaim is barred by the Statute of Frauds.
Illegality of contract is an affirmative defense. Under Rule 55.08, a party must set forth this defense in “pleading to a preceding pleading.” Plaintiff did not plead illegality. “Generally, failure to plead an affirmative defense results in waiver of that defense.” Detling v. Edelbrock, 671 S.W.2d 265, 271 (Mo. banc 1984).
In an effort to raise that defense, plaintiff attempted to show defendant’s actions violated a City of St. Louis ordinance. However, nothing in the record indicates that defendant either impliedly or expressly consented to trying the case on that defense.
At trial, defendant was the only witness. Plaintiff’s first question concerning city ordinances asked him whether he was “familiar with the laws or ordinances respecting obtaining an electrical permit in the city.” Defendant’s relevancy objection was overruled. Defendant was then handed what purportedly was a city ordinance and asked if it was a city ordinance.
Before defendant responded to that question, the trial court asked if the parties could stipulate that the ordinance was a St. Louis city ordinance. Defendant’s counsel declined, saying, “I’ve never seen the thing before and I think the burden is on him to lay a foundation.” In addition, shortly thereafter, defendant’s counsel objected to further questioning about the ordinance, saying, “It’s not material to any issue pending in this lawsuit.” The objection was overruled.
*70 Unlike the majority, I do not find the defense of illegality was tried by the implicit consent of the defendant. This defense was based on the ordinance. Defendant repeatedly objected to the ordinance. As our supreme court said, “[CJonsent to the trial of non-pleaded affirmative defenses should not be implied unless it clearly appears that [the opposing party] tacitly agreed to join the such (sic) defense.” Id. Defendant did not agree, “tacitly” or otherwise, to try the defense of illegality.
The judgment should be affirmed.