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Motor Car Co. v. U.S. Rubber Co.

Supreme Court of Mississippi, Division B
Jun 16, 1932
141 So. 595 (Miss. 1932)

Opinion

No. 30000.

May 9, 1932. Suggestion of Error Overruled June 16, 1932.

1. ACCOUNT, ACTION ON.

Correctness of account sued on held for jury, where defendant's president admitted account was correct, unless he was entitled to certain credit.

2. EVIDENCE.

Correspondence, which defendant's president admitted was correct, between plaintiff and defendant, held properly admitted as against contention they were self-serving declarations.

APPEAL from the circuit court of Perry county. HON.W.J. PARK, Judge.

E.C. Fishel, of Richton, for appellant.

A ledger entry made by a deceased person is incompetent evidence.

Carter v. Catchings, 48 So. 515; Whitfield v. Whitfield, 40 Miss. 352.

Self-serving declarations are not admissible as a general rule whether they are delivered orally or reduced to writing.

1 R.C.L., page 470.

An unanswered letter containing the writer's argumentative presentation of his view of his rights and grievances is a declaration in his own behalf and inadmissible in his favor.

Dempsey v. Dobson, 174 Pa. St. 122, 34 A. 459, 52 A.S.R. 816, 32 L.R.A. 767.

Whatever McCormick as a witness admitted, it did not estop the defendant from proving the incorrectness of the account and it was error to exclude evidence of credits not shown on the itemized statement.

A witness should not be permitted to testify to the correctness of the account without reference to the books and which books he had never even seen, and the keeping of which was left entirely to other hands and another department of the company's business.

Instructions singling out certain part of the evidence are erroneous.

Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Hooks v. Mills, 101 Miss. 91, 57 So. 545.

The giving of an argumentative instruction is error.

Stevens Heidelberg and M.M. Roberts, all of Hattiesburg, for appellee.

The President of the Motor Car Company admitted the indebtedness of nine hundred six dollars and twenty cents to be due and owing, and even if it can be successfully contended that the sworn itemized statement of account is irregular, or that the counter affidavit is sufficient, in view of the admissions as made by the President of the appellant corporation, the said corporation would be bound by his admissions as made in open court.

The counter affidavit as filed is not sufficient.

Section 1591, Code of 1930.

If there is any error in having permitted the letters to get into the record, there were no objections made at the time, and it is now too late for the appellant to complain at the introduction of same.

The instructions complained of are not a charge on the weight of the evidence, and neither do they give prominence to any part of the evidence as introduced.

There was no denial of the indebtedness in the first instance; there was no counter affidavit filed on behalf of the defendant as the statute requires, and a prima facie case was made out by the United States Rubber Company, Inc., when the sworn, itemized statement of account was introduced and the only question remaining was whether or not there was an agreement on the part of appellee to accept oil in part payment of the indebtedness; this last question was submitted to a jury for decision, and the jury in returning its verdict settled this question of fact.


The United States Rubber Company filed its declaration upon an itemized and duly sworn to account. The defendant filed a counter affidavit denying every item of the account, headed by the style of the case, but which was made by McCormick as though he was individually sued. In other words, it specified that the affiant, McCormick, did not owe the debt or any part thereof, rather than that the McCormick Motor Car Company did not owe the debt, etc., which affidavit reads as follows: "Personally appeared before me, the undersigned authority in and for said County and State, S.F. McCormick, who after being by me first duly sworn, on his oath says: That he does not owe any one of the items in the sworn itemized account attached to the declaration; that each and every item thereof is not due and owing by this affiant, and that therein each and every item is incorrect," and was signed by S.F. McCormick, and sworn to, etc.

No point was made in the court below as to the sufficiency of this affidavit, and the trial proceeded upon the issues as though the affidavit was proper.

On the trial of the cause, the plaintiff introduced S.F. McCormick, the president of the McCormick Motor Car Company and manager of its business, and by him proved that the amount sued for was correct and owing, unless he was entitled to have certain oil sold to the plaintiff, United States Rubber Company, by him applied on the debt, which, if done, would reduce the plaintiff's demand from nine hundred six dollars to one dollar and forty-five cents. The plaintiff denied that it had purchased such oil, and that there was any agreement to accept it, contending that the negotiations were pending in reference thereto, and, before being consummated, that the defendant, McCormick, hired a truck and had the oil in question transported to New Orleans for delivery to the plaintiffs; that the oil was there stored for the account of McCormick Motor Car Company, and that said company was notified that this had been done and that the plaintiff, United States Rubber Company, would not accept the oil.

The plaintiff, United States Rubber Company, offered witnesses to prove that its account was correct, but it was developed that these witnesses had not kept the books, and that the account was made up from the books and furnished them by other persons not witnesses, and that they were unable to say, from their own knowledge, that the account was correct.

The appellant, McCormick Motor Car Company, insists that it was error for the court to submit to the jury proof as to the correctness of the account, because the books, themselves, were not introduced, and because the persons who kept the books were not introduced to testify that they were correct. The appellee contends here that the affidavit of McCormick, in the form it was made, did not amount to a denial of the correctness of the account, and that the plaintiff, United States Rubber Company, was not required to put on any proof in reference thereto.

We think the testimony of S.F. McCormick establishes the correctness of the account. He admits that it is correct, unless he is entitled to a credit for thirty-five drums of oil which he claims to have sold to the United States Rubber Company, the plaintiff, at forty-seven cents per gallon, which should be allowed in payment.

We think the proof upon the proposition as to whether there was an agreement between the United States Rubber Company and the McCormick Motor Car Company was such that the jury's verdict must be upheld. The greater number of witnesses upon the proposition showed that the sale was not made, and we are of opinion that the jury was warranted in so finding from the evidence in the record.

We have examined the instructions complained of and assigned for error, and think they announce correct principles and were applicable to the evidence in the cause, and that there was no error in giving them.

It is complained that certain correspondence introduced in evidence passing between the credit manager of the plaintiff, the United States Rubber Company, and the McCormick Motor Car Company, was wrongfully admitted and constituted self-serving declarations on the part of the plaintiff, the United States Rubber Company. We think the letters were properly identified, and that McCormick, as an adverse witness for the plaintiff, admitted receipt of the letters and the correctness of the correspondence, and that it was relevant to the issue as to whether there was a sale or not, and were properly admitted.

We find no reversible error, and the judgment of the court below is affirmed.

Affirmed.


Summaries of

Motor Car Co. v. U.S. Rubber Co.

Supreme Court of Mississippi, Division B
Jun 16, 1932
141 So. 595 (Miss. 1932)
Case details for

Motor Car Co. v. U.S. Rubber Co.

Case Details

Full title:McCORMICK MOTOR CAR CO. v. UNITED STATES RUBBER CO

Court:Supreme Court of Mississippi, Division B

Date published: Jun 16, 1932

Citations

141 So. 595 (Miss. 1932)
141 So. 595

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