Clements v. Smith

76 A. 50, 24 Del. 16, 1 Boyce 16, 1909 Del. LEXIS 28

• Court: Superior Court of Delaware
• Decided: July 7, 1909
• Status: Published

Opinion

Woolley, J.,

delivering the opinion of the Court:

In the case of Stiles 0. Clements vs. Paul R,. Smith, being number 24 to the July Term, 1909, the plaintiff filed an affidavit of demand, and appended thereto a copy of the cause of action in these words, viz.:

“Paul R. Smith

to Stiles O. Clements, Dr.

1909

June 1, To work and labor done and services rendered in the matter of the preparation of plans and specifications for the erection of a building in Middletown, Delaware........$150.00.“

The attorney for the defendant has moved that judgment be refused in this case notwithstanding the affidavit of demand.

The Court has concluded that the copy of the cause of action in this case is in all material respects similar to the copy of the cause of action filed in the case of Sloan vs. Grimshaw, reported in 4 Houston at p. 326, in which case the Court held that the cause of action was not one properly chargeable in a book account.

The test which the Court has applied to this case is, that in the event of the defendant filing an affidavit of defense and the case going to trial, it is apparent that the account could not be proved in the way provided by the statute, viz., by the production of the book of original entries supported by the oath of the plaintiff. In other words,we conclude that the only way to prove an item of this character would be to prove the contract. Therefore we have arrived at the conclusion that this is not a proper item of book account,and we accordingly direct that judgment be refused notwithstanding the affidavit of demand.

Judgment refused.