{
  "id": 5362851,
  "name": "PLATEAU, INC., a corporation, Plaintiff-Appellee, v. S. E. WARREN, an individual, and Home Oil Company, a corporation, Defendants-Appellants",
  "name_abbreviation": "Plateau, Inc. v. Warren",
  "decision_date": "1969-06-09",
  "docket_number": "No. 8715",
  "first_page": "318",
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  "last_updated": "2023-07-14T15:41:23.226975+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "MOISE and TACKETT, JJ., concur."
    ],
    "parties": [
      "PLATEAU, INC., a corporation, Plaintiff-Appellee, v. S. E. WARREN, an individual, and Home Oil Company, a corporation, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "OPINION\nCOMPTON, Justice.\nThe question presented is whether evidence to the effect that a written contract between the parties had been terminated by a subsequent agreement of the parties was erroneously admitted as being outside the scope of the pleadings.\nPlaintiff brought suit on a promissory note and an open account. Judgment was awarded thereon, and no appeal has been taken therefrom. By way of counterclaim the defendants asserted a written contract between the parties under which they claimed a substantial amount in excess of the amount due the plaintiff. The written contract provided that the plaintiff was to sell to the defendants all of the petroleum required by the defendants for resale to Clark Oil Company, to accept assignments from the defendants of their invoices against Clark Oil Company, and to credit the amount of such assigned invoices against defendants\u2019 account with plaintiff. Defendants allege in their counterclaim that they assigned to plaintiff invoices for sales of gasoline to Clark Oil Company greatly in excess of $100,000.00; and that the plaintiff in violation of the terms of the written agreement frattdulently charged to and collected from defendants\u2019 invoices for sales of gasoline to Clark Oil Company that were assigned to plaintiff in the amount of $64,367.75. Judgment was sought for this amount and additional amounts on different counts. In its an,swer to the counterclaim, the plaintiff denied the existence of the written contract and alleged that it had been terminated by mutual agreement of the parties.\nAt the trial the plaintiff introdrtced evidence of a subsequent oral agreement between the parties to the effect that the written contract had been terminated and that the defendants were to accept return of all unpaid Clark Oil Company invoices. The objection interposed to the evidence of an oral agreement was that this evidence asserted an affirmative defense and that\u00bb this defense had not been specifically' pleaded as required by \u00a7 21-1-1(8) (c), N. M.S.A.1953, being Rule 8(c), our Rules of Civil Procedure. The trial court overruled the defendants\u2019 objection and the ruling of the court is the basis of the defendants\u2019 appeal.\nWhile matters constituting an avoidance or an affirmative defense must be specifically pleaded, Rule 8(c), \u00a7 21-1-1(8) (c), N.M.S.A.1953, we think there was substantial compliance with the rule. See 1A Barron & Holtzoff, Federal Practice & Procedure, \u00a7\u00a7 27.9, 283. The plaintiff\u2019s answer specifically states that \u201csaid contract was terminated by mutual agreement of the parties.\u201d Also, the pretrial order contains a statement that the plaintiff was contending that the written contract had been terminated by mutual agreement of the parties. Compare Transwestern Pipe Line Company v. Yandell, 69 N.M. 448, 367 P.2d 938; Johnson v. Citizens Casualty Company of New York, 63 N.M. 460, 321 P.2d 640; Rule 16, Rules of Civil Procedure, \u00a7 21-1-1(16), N.M.S.A.1953. Further, the defendants themselves injected into the record evidence whether there was a subsequent oral agreement between the parties. The defendant Warren, while testifying in support of the counterclaim, was asked by his counsel if during any of the conversations with Mr. Garretson [plaintiff\u2019s agent] he had agreed to take back the assignments of the Clark Oil Company invoices. Compare Harbin v. Assurance Company of America, 308 F.2d 748 (10th Cir. 1962); Trebuhs Realty Co. v. News Syndicate Co., 12 F.R.D. 110. McLean v. Paddock, 78 N.M. 234, 430 P.2d 392, cited by the defendants is to be distinguished on the facts and does not require a different result.\nThe judgment should be affirmed. It is So ordered.\nMOISE and TACKETT, JJ., concur.",
        "type": "majority",
        "author": "COMPTON, Justice."
      }
    ],
    "attorneys": [
      "Edwin L. Felter, Santa Fe, for appellants.",
      "Burr & Cooley, Farmington, for appellee."
    ],
    "corrections": "",
    "head_matter": "455 P.2d 184\nPLATEAU, INC., a corporation, Plaintiff-Appellee, v. S. E. WARREN, an individual, and Home Oil Company, a corporation, Defendants-Appellants.\nNo. 8715.\nSupreme Court of New Mexico.\nJune 9, 1969.\nEdwin L. Felter, Santa Fe, for appellants.\nBurr & Cooley, Farmington, for appellee."
  },
  "file_name": "0318-01",
  "first_page_order": 374,
  "last_page_order": 375
}