Kohlenberger, Inc. v. Tyson's Foods, Inc.

I must disagree with the majority opinion in so far as it holds that Kohlenberger, Inc., can prove its contractual limitation of damages and modification of remedy.

Our decisions consistently hold that in the absence of a plea of payment, proof thereof is inadmissible. See Arkansas Power & Light Company v. Liebe, Admix., 201 Ark. 292, 144 S.W. 2d 29 (1940). It is pointed out in 61 Am. Jur. 2d PLEADING § 156 that affirmative defenses — that is matters constituting a confession and an avoidance such as payment and contractual limitations on the time within which suit may be brought, must be…