Opinion
May 23, 1949.
1. Open account, action on — statute and its effect.
Section 1754, Code 1942, providing that a person who sues on an open account may make and attach an affidavit of its correctness and that it is due, and that unless the defendant makes an affidavit with his plea that the account is not correct and in what particulars not correct, the plaintiff shall be entitled to judgment, establishes a rule of evidence, not one of pleading and practice, its sole object being to dispense with proof of the original correctness of the account when sworn to, unless the defendant shall deny it by affidavit as therein provided, the rules of evidence not being changed otherwise than as stated.
2. Open account, action on — trial — evidence when correctness of sworn account disputed by affidavit.
When under Section 1754, Code 1942 an action has been brought on a sworn open account disputed by defendant's affidavit with his plea, the plaintiff has the right to support his action and account by his own testimony as well as by other evidence, and a denial of the right constitutes reversible error.
Headnotes as approved by Smith, J.
Appeal from Judgment
E.H. Ratcliff, for appellant.
There is nothing in our statutes or in our decisions that requires a plaintiff to itemize an open account with the detail defendant demands in this case. Appellee apparently relies on Sec. 1754, Chap. 8, Code of 1942. That article does nothing more than create an expeditious method of reducing an open account to judgment by providing that if the account be sworn to, plaintiff may have judgment against defendant for the amount of the demand unless all or part of such a demand is denied under oath by defendant. The article of the Code referred to does not in any sense abridge the common law rules of evidence but adds a new means of reducing a claim to adjudication, by substituting an affidavit for proof taken in open court. It does not abolish the well established means of proving a demand and distinctly says that a a person desiring to enter suit on an open account may make an affidavit, etc.
It is suggested that our country merchants have fallen on evil days indeed if every egg, tomato, box of crackers, etc., must be set out on the books with meticulous care and exactitude. Plaintiff offered in evidence the books of original entry and testified that she made same and that defendant obtained the merchandise on the dates shown and that said books were in all respects, a correct statement.
Appellee's complaint seems to be grounded upon the idea that the account fails to show the exact number of eggs, tomatoes, etc., were purchased at a particular time. "No mode is prescribed by law in which a book must be kept to make it evidence and the question of competency must be determined by the appearance and character of the book, regard being had to the degree of education of the party, the nature of his employment, the manner of his charges against other people, and all the circumstances of the case," Moody v. Roberts, 41 Miss. 78.
In Jones on Evidence 4th Edition, Vol. 2, Sec. 570, it is said: "Although regularly prices ought to be specified, yet the book is not necessarily inadmissible, even if measure, weight, price and quantity are not given in connection with the items charged, etc."
Plaintiff below did not seek any judgment on a sworn account but offered to prove the same by competent testimony. Moreover, defendant if dissatisfied with the statement of the debt sued on, could have demanded a bill of particulars in order to better apprise him of the details of the account. He did not do so. Plaintiff, in effect, asked to be allowed to comply with defendant's objection and was refused by the court. In Bloom v. McGrath, et al., 53 Miss. 249, it is held that a defective bill of particulars could be amended and was properly allowed. Here an amended account was not only refused by the court but plaintiff was peremptorily thrown out of court. L.L. Forman, for appellee.
It is the contention of the appellee that the account as shown by the book of original entry fails to meet the requirements of Section 517 and 1638, Hemmingway Code (Sections 734 and 1978, Code of 1906) and Sections 1469 and 1754, Mississippi Code 1942, Annotated.
In the case of W.M. Finck and Company v. Brewer, et al, 133 Miss. 9, 96 So. 402, the court said: "The accounts contemplated by these two sections of the Code are itemized accounts. They must show the dates of purchase, the kind of goods, the quantity and the price." Appellant's original book of accounts was produced and introduced in evidence as Exhibit No. 1. By reference thereto we find the account is attempted to be itemized as follows:
"July 26 Flour, sugar, Tomatoes soap $8.35 July 30 Bacon, eggs, coffee 3.80",
and so on. In no instance does the attempted itemized account show the quantity or price of the kind of goods.
In the case of Pipes v. Norton, 47 Miss. 61, the court said: "The code of 1871, Section 580, provides that where an open account is sued on there shall be filed with the declaration, `before process issues' an `itemized' copy of the account sought to be recovered, and if this be not done, appellant shall not be permitted to give evidence in support thereof."
Section 1754, Code of 1942, provides that "A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account, and that it is due from the party against whom it is charged; and in any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due; . . ."
(Hn 1) This statute is a rule of evidence and not one of pleading and practice. Griffith v. Goodin, 202 Miss. 548, 32 So.2d 743, 744. In our opinion there, we said: ". . . since appellee, as plaintiff below, offered no competent proof to establish either the correctness of his claim against appellant or the liability of the latter therefor, his motion for a peremptory instruction should have been sustained. Accordingly, it was also error to overrule appellant's motion for a new trial."
In the case at bar, appellant, as plaintiff in the court of a justice of the peace, filed an open account to which was attached the statutory affidavit to her claim against appellee, who filed a counter affidavit denying that ". . . such articles or any of them were purchased and charged as alleged by the plaintiff. The defendant, therefore, demands proof of plaintiff as to the purchase of each and every item appearing in said account." Appellant recovered judgment against appellee in the court of the justice of the peace, and the latter party appealed to the circuit court.
In the trial of the cause in that court, appellant appeared as a witness in her own behalf, and, while on the witness stand and being interrogated by her counsel, was asked, among other questions, if the account was a true and correct statement. Before she could answer, counsel for appellee objected, and, after some argument back and forth, interposed the following: "Comes now the defendant and object to any testimony from the original entry as purportedly shown by the plaintiff in this case for the reason same does not meet the requirements of the statute, that requirement being that an account must be itemized, and this is not an itemized account according to the statute." The court, at that point, said: "I don't see a single line with one article." Thereupon appellee's counsel stated: "That is our objection. We object to any further testimony and ask for a directed verdict on that ground." And the court said: "Sustained, judgment for the defendant." The plaintiff appealed here, and assigns this action of the court below as reversible error.
It is to be borne in mind that the sole object of the statute is to dispense with proof of the original correctness of the account when sworn to, unless defendant shall deny it by affidavit as therein provided. Reinhardt v. Carter, 49 Miss. 315; Bower v. Henshaw, 53 Miss. 345.
In the case of Griffith v. Goodin, supra, no proof of the account was offered or attempted to be introduced on behalf of the plaintiff. (Hn 2) In the instant case, appellant, as plaintiff, was herself actually testifying in accordance with the rule, when affidavit to account is met by counter affidavit denying it. Appellee's counter affidavit itself specifically demanded proof "as to the purchase of each and every item appearing in said account." The statute establishes a rule of evidence within the purview of its purpose, but it does not change the rules of evidence otherwise. What further proof appellant would offer, in addition to that she had already made, without objection before being stopped by the court's announcement, the record, of course does not disclose, since she was silenced by the court in the midst of her testimony. Before she had rested her case, judgment was rendered against her, — which cut off any further evidence by her or in her behalf.
We are of the opinion that this was reversible error, and that because of it, the judgment of the circuit court must be reversed, and the cause remanded for a new trial.
As to the second assignment of error, we deem it unnecessary to discuss it, because its basis is not likely to recur on a retrial.
Reversed and remanded.