{
  "id": 5797886,
  "name": "LEE HARVEY, d/b/a Gemstones Unlimited, Plaintiff-Appellee, v. RICH McKINNEY, d/b/a Earth Design, Defendant-Appellant",
  "name_abbreviation": "Harvey v. McKinney",
  "decision_date": "1991-10-29",
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  "first_page": "140",
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    "id": 8837,
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  "last_updated": "2023-07-14T20:24:34.404944+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "LEE HARVEY, d/b/a Gemstones Unlimited, Plaintiff-Appellee, v. RICH McKINNEY, d/b/a Earth Design, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nDefendant, Rich McKinney, d/b/a Earth Designs (McKinney), appeals from a judgment of the circuit court of St. Clair County which awarded plaintiff, Lee Harvey, d/b/a Gemstones Unlimited (Harvey), damages of $285,925.93 and accrued interest of $80,631, plus additional interest at the rate of .003% per day for the period between November 1, 1989, when the parties finished presenting their evidence to the court, and May 14, 1990, when the court entered its judgment. Harvey was also awarded his court costs. As grounds for his appeal, McKinney argues that the circuit court erred in failing to find that a portion of Harvey\u2019s claim was unenforceable by virtue of the statute of frauds provision of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2 \u2014 201). We affirm.\nThe evidence, when viewed in the light most favorable to Harvey, the prevailing party (see In re Marriage of Admire (1989), 193 Ill. App. 3d 324, 329, 549 N.E.2d 620, 623), established that Harvey agreed to supply gemstones to McKinney, which McKinney was to sell to third parties. Any profits from such sales were to be divided equally between the parties. Pursuant to this agreement, Harvey furnished gemstones to McKinney which had a total value of $445,281.02. (The circuit court\u2019s order placed the value at two cents less than this amount, but there appears to be no question that this was simply a typographical error.) McKinney was able to sell some of these stones and paid Harvey $31,895.74 of the proceeds. After Harvey informed McKinney that he was unhappy with McKinney\u2019s level of sales, McKinney returned $127,459.35 worth of the gemstones to him. McKinney also gave Harvey an inventory list, on the last page of which he wrote: \u201cThis is a partial list of goods on memo \u2014 consider all other gems sold or being sold. [Signed,] Richard.\u201d The value of these remaining stones was $285,925.93.\nWhen McKinney failed to pay Harvey this amount, Harvey brought an action against him for breach of contract and conversion. The case was ultimately submitted to the court on the theory that in acting as he did, McKinney had effectively bought the goods himself and that the \u201csale\u201d of the stones to him was governed by the Uniform Commercial Code \u2014 Sales (Ill. Rev. Stat. 1987, ch. 26, par. 2 \u2014 101 et seq.). As we have previously indicated, the court, sitting without a jury, adopted Harvey\u2019s position and awarded him the damages he sought, $80,631 in accrued interest, plus additional interest for the period between November 1, 1989, and May 14, 1990, calculated at the rate of .003% per day.\nOn this appeal, McKinney does not dispute the applicability of the Uniform Commercial Code \u2014 Sales (Ill. Rev. Stat. 1989, ch. 26, par. 2 \u2014 101 et seq.). Rather, he contends that his agreement with Harvey constituted \u201ca contract for the sale of goods for the price of $500 or more\u201d and that under the statute of frauds provision of the Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2 \u2014 201), Harvey had an enforceable contractual right to payment only for the quantity of goods which McKinney himself admitted to having received. (See Ill. Rev. Stat. 1987, ch. 26, par. 2 \u2014 201(3)(b).) According to McKinney, the actual amount of gemstones he received from Harvey amounted to only $235,170.02, not the $445,281.02 found by the court. Because McKinney already paid Harvey $31,895.74 and returned to him inventory valued at $127,459.35, McKinney reasoned that he only owed Harvey $75,814.93 plus accrued interest on that sum which, at the .003% daily rate agreed upon by the parties, amounted to $21,379.55. In McKinney\u2019s view, the total due was thus $97,194.48, not the $366,557.04 awarded by the court. Accordingly, McKinney argues that we must reduce the circuit court\u2019s judgment to this lesser amount.\nHarvey has advanced various substantive arguments as to why McKinney\u2019s statute of frauds defense must be rejected. We need not reach the merits of these arguments, however, for Harvey also raises a threshold procedural claim which we believe is dispositive, namely, waiver. Section 2 \u2014 619(a)(7) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 619(a)(7)) provides that a defendant may, within the time for pleading, file a motion for dismissal of an action or for other appropriate relief on the grounds that \u201cthe claim asserted is unenforceable under the provisions of the Statute of Frauds.\u201d McKinney filed no such motion here. McKinney could also have raised his statute of frauds defense in his answer to Harvey\u2019s complaint. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 613(d).) As Harvey points out, however, McKinney did not do this either. Indeed, it was not until the trial was over and the evidence closed that McKinney mentioned the statute of frauds at all.\nThe law in this State is well established that if a defendant wishes to assert an affirmative defense such as the statute of frauds at trial, he is required to specifically plead it so that the plaintiff is not taken by surprise. If he fails to do so, he is deemed to have waived the defense, and it cannot be considered even if the evidence suggests the existence of the defense. (Spagat v. Schak (1985), 130 Ill. App. 3d 130, 134, 473 N.E.2d 988, 992.) Although we have found no Illinois precedent directly on point, we believe these principles are no less applicable where the statute of frauds is sought to be raised in the context of an action governed by the Uniform Commercial Code \u2014 Sales (Ill. Rev. Stat. 1987, ch. 26, par. 2\u2014 101 et seq.) than they are in a conventional common law action for breach of contract. (See Ill. Rev. Stat. 1989, ch. 26, par. 1 \u2014 103; Acuri v. Figliolli (1977), 91 Misc. 2d 831, 398 N.Y.S.2d 923.) Accordingly, McKinney is now precluded from availing himself of the statute of frauds as a basis for challenging the circuit court\u2019s judgment. No other claims of error having been advanced, that judgment is affirmed.\nAffirmed.\nHOWERTON and CHAPMAN, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE HARRISON"
      }
    ],
    "attorneys": [
      "Charles H. Stegmeyer, of Belleville, for appellant.",
      "John R. Sprague, Sr., of Sprague & Sprague, of Belleville, for appellee."
    ],
    "corrections": "",
    "head_matter": "LEE HARVEY, d/b/a Gemstones Unlimited, Plaintiff-Appellee, v. RICH McKINNEY, d/b/a Earth Design, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 90\u20140346\nOpinion filed October 29, 1991.\nCharles H. Stegmeyer, of Belleville, for appellant.\nJohn R. Sprague, Sr., of Sprague & Sprague, of Belleville, for appellee."
  },
  "file_name": "0140-01",
  "first_page_order": 162,
  "last_page_order": 165
}