Opinion
8 Div. 98.
February 27, 1941. Rehearing Denied March 27, 1941.
Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.
R. B. Patton and D. U. Patton, both of Athens, for appellant.
Technical accuracy is not required in items of account filed against an estate, but the items must appear with reasonable certainty, showing the nature and character of the claim. Floyd v. Clayton, 67 Ala. 265; Code 1923, § 5818; Morrisette v. Wood, 128 Ala. 505, 30 So. 630; Brown v. Grayson, 17 Ala. App. 463, 86 So. 121. Original entries in books of a physician are admissible in evidence unless the defendant in open court deny the correctness thereof by sworn plea, but the physician is required to prove the value of such services. Code 1923, § 7671; Richardson v. Dorman's Ex'x, 28 Ala. 679. No person having a pecuniary interest in result of a suit is allowed to testify against the party to whom his interest is opposed as to any transaction with or statement by the deceased person whose estate is interested in the result of the suit. Code, § 7721; Warten v. Black, 195 Ala. 93, 70 So. 758; Oliver v. Williams, 163 Ala. 376, 50 So. 937; Mobile Sav. Bank v. McDonnell, 87 Ala. 736, 6 So. 703. Code, § 7671, was not repeated by § 7701. Both statutes are a part of the code and must be given a field of operation. Alford v. Claborne, 229 Ala. 401, 157 So. 226; State v. Towery, 143 Ala. 48, 39 So. 309; Board of School Com'rs v. American Surety Co., 220 Ala. 458, 125 So. 906. An account stated will not lie to enforce a promise to pay the debt of another. 1 C.J.S., Account Stated, § 14 page 698; 1 Am.Jur. 275, 288; Webb v. J. R. Lowe Co., 215 Ala. 552, 112 So. 138.
Edw. Goodrich and Thos. G. Steele, both of Athens, for appellee.
It is sufficient presentation of a claim against an estate if the claim presented notifies the representative of the nature and character of the claim, the amount thereof and that the estate is looked to for payment. Code 1923, § 5818. Floyd v. Clayton, 67 Ala. 265; Watson v. Hamilton, 210 Ala. 577, 98 So. 784; Holloway v. Calvin, 203 Ala. 663, 84 So. 737; Smith v. Fellows, 58 Ala. 467. The account books of a physician, if proved to be books of original entry, may be admitted as evidence in proof of such accounts. Code, § 7701; Lampkins v. Thomas, 16 Ala. App. 482, 79 So. 156; Sharp v. Blanton, 194 Ala. 460, 69 So. 889; McDonald v. Carnes, 90 Ala. 147, 7 So. 919; Hatcher v. Lammons, 215 Ala. 548, 112 So. 120, Any transactions with or statements by the deceased in order to keep parties interested in the suit from testifying must be personal transactions, done by the deceased or participated in by him. Code, § 7721; Warten v. Black, 195 Ala. 93, 70 So. 758; Wood v. Brewer, 73 Ala. 259; Miller v. Cannon, 84 Ala. 59, 4 So. 204; Hunt v. Murdock, 229 Ala. 277, 156 So. 841. Error committed in admission of testimony tending to prove an account stated is without injury, since the case was decided on counts claiming on open account.
This suit is against C. R. Jones, as administrator of the estate of W. T. Jones, deceased, and seeks recovery for services rendered by plaintiff as physician under common counts of work and labor done, open account and account stated. Upon trial of the cause before the court without a jury there was judgment for plaintiff, though for less sum than sued for, and defendant appeals.
It is first insisted the account filed in the probate office was too indefinite to meet the requirements of our statute and decisions; and of consequence improperly admitted in evidence. Of course it is understood that the certainty of description essential in pleading is not required, though the statement must, of itself, be sufficient to inform the personal representatives upon an inspection of it, of the nature, character and amount of the liability it imports, and must distinguish it with reasonable certainty from all similar claims. Floyd v. Clayton, 67 Ala. 265; Hunt v. Murdock, 229 Ala. 277, 156 So. 841; Watson v. Hamilton, 210 Ala. 577, 98 So. 784.
Speaking to this subject we observed in Roberts v. Grayson, 233 Ala. 658, 173 So. 38, 40, that "the law is designed for practical purposes and looks to practical ends". Whatever uncertainty may be said to appear in the statement itself is made plain and unmistakable in the sworn statement attached thereto (Watson v. Hamilton, supra), and the practical purpose of the law is fully met. Indeed the statement alone (though the dollar mark be omitted), we are inclined to think sufficed for all purposes. But considered in connection with the attached affidavit all question of doubt is removed. No error here appears.
Plaintiff introduced his account books of original entries and testified to the correctness as therein shown. That the proof sufficed to admit this account book of original entries in evidence if section 7701, Code of 1923, may be said to apply thereto, does not appear to be seriously questioned. But defendant insists the matter is controlled by Section 7671, Code of 1923, applicable only to physicians and a part of the code long before the enactment of Section 7701, and the provisions therein cannot here apply because defendant had denied "on oath the truth of such entries".
It is clear enough the change made in the re-enactment of what was Section 4003, Code of 1907 and now Section 7701, Code of 1923, was for the purpose of meeting the strict requirements of the rule as recognized in Loveman, Joseph Loeb v. McQueen, 203 Ala. 280, 82 So. 530.
Under Section 7671, Code of 1923, the physician had long been given a rather preferential status in regard to proof of such original entries, though subject to be defeated by the sworn denial of the defendant. Here defendant argues this latter Section (7671), must control, thereby placing the physician in a less favorable position than the merchant, shopkeeper and the like. But such was not the legislative intent for in the more recent statute (7701), the physician is included along with the rest.
We must conclude, therefore, as did the court below, the later statute (Section 7701) supersedes the former. Plaintiff testified that many names in the original book entries were tenants on the farm of decedent and explained also the letter "V" as found in the accounts meant "visits". Testimony of such collateral facts did not come within the prohibitions of Section 7721, Code of 1923 (Warten v. Black, 195 Ala. 93, 70 So. 758; Hunt v. Murdock, supra), and there was no error in the rulings in that regard.
The judgment was a general one with reference to no particular count. For the sum recovered it was supported by the undisputed proof on that count of the complaint resting upon an open account, and it is immaterial as to whether or not a case was sufficiently established as for a stated account. Nor does the mere fact that the recovery was for a sum less than the claim which was originally filed present any matter of variance or in anywise affect the judgment rendered. Holloway v. Calvin, 203 Ala. 663, 84 So. 737.
Upon due consideration of the argued assignments of error we find no cause for a reversal, and the judgment will accordingly be here affirmed.
Affirmed.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.