J. Sullivan & Sons Mfg. Corp. v. Trade Bank & Trust Co.

The defendant has waived its appeal insofar as the Statute of Frauds defense is concerned, so that the only-issue is whether the motion should have been granted as to the second affirmative defense which purports to set up an alleged election of remedies by the plaintiff.

The defendant did not learn of the facts of the proposed second defense until six months after the commencement of the action and after the interposition of the original answer. While the court will not attempt to determine the issues thus presented, it is clear at least that there is merit to the proposed amendment. In the…