Adams v. Fidelity Mutual Life Insurance

Mississippi Supreme Court

Adams v. Fidelity Mutual Life Insurance

49 So. 119, 94 Miss. 433

DecidedMarch 15, 1909

StatusPublished

This text of 49 So. 119 (Adams v. Fidelity Mutual Life Insurance) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adams v. Fidelity Mutual Life Insurance, 49 So. 119, 94 Miss. 433 (Mich. 1909).

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Opinion

Fletcher, J.,

delivered the opinion of the court.

This suit was instituted on the bond of Adams, executed to appellees; the principal and sureties being sued. The sureties answered, denying that there had been any breach of the conditions of the bond. No proof whatever was offered by plaintiff showing that there had been any such breach. He contented himself with offering an itemized account, properly sworn to, to which there was no counter affidavit. The court, however, struck out the plea of the sureties and practically directed a verdict for the amount sued for, instructing the jury that a verdict should be for the plaintiff if the plaintiff’s demand had been proven by the itemized and verified account, and declining to grant the peremptory instruction requested by the defendants.

Bearing in mind the obvious fact that this is a suit on the bond, the case is perfectly controlled by the opinion in American Surety Co. v. United States, etc., 76 Miss. 289, 24 South. 388. It is there said: “But the court proceeded on the errone[436]*436ous Hew, throughout the trial, that the suit was au action of assumpsit on an open account, and that the items embraced in the account could be established by -the affidavits made for the Melton Hardware Company and filed with the account. This was not an action of assumpsit for materials sold by the hardware company to Stowell & Co. It was a suit upon a bond, with distinct assignment of breach of the bond, in the usual and ordinary form. The reference in the declaration to the materials furnished by the hardware company to Stowell & Co., and the filing' of the itemized account as an exhibit, were intended only to show the measure of the damages recoverable for the breach of the bond sued on. Section 1801, Ann. Code 1892, has reference to suits upon open accounts only, and has no application in suits upon bonds and plainly the present suit was upon the bond. The plaintiff below should have been required, by competent evidence, to establish two things: First, the correctness of the items' embraced in the account; and, second, that these items were for material furnished for the construction of the courthouse. Until this had been done plaintiff- was not entitled to judgment.”

For this error, if there were no other, the case would have to-be reversed. However, since there must be a new trial, it is well to remark that appellant Adams is not precluded from making an attack upon the judgment rendered by the justice of the peace merely because he has executed an appeal bond to the circuit court. That question is distinctly decided in Dufour v. Chapotel, 75 Miss. 656, 23 South. 387.

Reversed and remanded.

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Fletcher, J.,

delivered the opinion of the court.

This suit was instituted on the bond of Adams, executed to appellees; the principal and sureties being sued. The sureties answered, denying that there had been any breach of the conditions of the bond. No proof whatever was offered by plaintiff showing that there had been any such breach. He contented himself with offering an itemized account, properly sworn to, to which there was no counter affidavit. The court, however, struck out the plea of the sureties and practically directed a verdict for the amount sued for, instructing the jury that a verdict should be for the plaintiff if the plaintiff’s demand had been proven by the itemized and verified account, and declining to grant the peremptory instruction requested by the defendants.

Bearing in mind the obvious fact that this is a suit on the bond, the case is perfectly controlled by the opinion in American Surety Co. v. United States, etc., 76 Miss. 289, 24 South. 388. It is there said: “But the court proceeded on the errone[436]*436ous Hew, throughout the trial, that the suit was au action of assumpsit on an open account, and that the items embraced in the account could be established by -the affidavits made for the Melton Hardware Company and filed with the account. This was not an action of assumpsit for materials sold by the hardware company to Stowell & Co. It was a suit upon a bond, with distinct assignment of breach of the bond, in the usual and ordinary form. The reference in the declaration to the materials furnished by the hardware company to Stowell & Co., and the filing' of the itemized account as an exhibit, were intended only to show the measure of the damages recoverable for the breach of the bond sued on. Section 1801, Ann. Code 1892, has reference to suits upon open accounts only, and has no application in suits upon bonds and plainly the present suit was upon the bond. The plaintiff below should have been required, by competent evidence, to establish two things: First, the correctness of the items' embraced in the account; and, second, that these items were for material furnished for the construction of the courthouse. Until this had been done plaintiff- was not entitled to judgment.”

For this error, if there were no other, the case would have to-be reversed. However, since there must be a new trial, it is well to remark that appellant Adams is not precluded from making an attack upon the judgment rendered by the justice of the peace merely because he has executed an appeal bond to the circuit court. That question is distinctly decided in Dufour v. Chapotel, 75 Miss. 656, 23 South. 387.

Reversed and remanded.

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49 So. 119, 94 Miss. 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-fidelity-mutual-life-insurance-miss-1909.

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