Walter E. Heller & Co. v. B. C. & M., Inc.

EVANS, Justice.

The principal question in this case is whether the trial court properly determined, as a matter of law, that the plaintiff’s claim for stipulated damages under an equipment lease contract was unenforceable as a penalty. We hold that it did not.

The defense of penalty was not specially pleaded by the defendants, but at the close of the plaintiff’s case-in-chief, the trial court granted the defendants’ motion for instructed verdict and entered a take nothing judgment against the plaintiff. The defense of penalty is an affirmative defense which may be waived by the defendant unless…