Converse Rubber Shoe Co. v. Rozen

192 Iowa 1053

• Court: Supreme Court of Iowa
• Decided: January 10, 1922
• Status: Published

Opinion

De Graff, J.

' action on'open sumption ?rom verification. . Plaintiff in its verified petition alleged that it sold and delivered to tbe defendant at bis instance and request certain goods and merchandise as shown by a bill of par-tieulars attached to tbe petition and made a.part thereof; that the price and values of the merchandise as disclosed therein are the reasonable . -, , « tl 7_. ___ prices and values ot the merchandise so sold and delivered, and that there is still due the plaintiff after deducting certain cash credits and merchandise returned the sum of $178.01. Defendant in an unverified answer denied both generally and specifically every material allegation contained in said petition and further denied that he is indebted to the plaintiff in any sum whatever.

Upon the conclusion of plaintiff’s testimony defendant moved for a directed verdict and as primary grounds therefor alleged that the testimony failed to show that the defendant is indebted in any sum to the plaintiff and that there is no evidence upon which the jury could return a verdict in favor of the plaintiff. This motion was sustained by the trial court and error is predicated on the ruling.

Did plaintiff establish a prima-facie case when it rested! Under the statute and the pleadings herein we answer in the affirmative. Code Section 3624 provides:

“In all actions for money due upon an open account, * * * and the petition is duly verified, and where a bill of particulars of said account is incorporated into or attached to the petition, if the defendant * * * fails to controvert or deny the same or any of the items thereof by pleading duly verified, the account, or so much thereof as is not so controverted or denied, shall be taken as true and admitted.”

This is a companion statute to Code Sec. 3640. The legislature intended to put written instruments and open accounts properly pleaded on the same footing, and require denial under oath or the instrument is taken as “genuine and admitted” and the account as “true and admitted.” See Templin v. Rothweiler, 56 Iowa 259.

The items of account as pleaded are clearly provable by plaintiff by its books of original entry. Lyman & Co. v. Bechtel & Ross, 55 Iowa 437. Plaintiff having pleaded in conformity to the provisions of this statute is entitled to the benefits thereof, and the defendant is put upon his proof. Defendant having failed to conform by filing a verified answer controverting the account as pleaded, tbe account “shall be taken as true and admitted.” This means admitted as true on tbe part of tbe defendant. Had plaintiff before trial moved for judgment on tbe pleadings, tbe court unless defendant verified bis answer would bave been justified in entering judgment.

2 evidence• com-5oteprovaíieURy ex-paxts order, The evidence in the instant case discloses that the. plaintiff through C. B. Collins, its commercial agent, received an oral order from the defendant on September 30, 1918 for 60 pairs rubber shoes or “arctics” and that the same shipped by the plaintiff to the defendant; that the plaintiff and defendant bad bad prior business transactions of like character; that at tbe time tbe last order was given plaintiff’s salesman wrote the order in bis pocket order book and gave to tbe defendant a duplicate copy thereof on which was written a guaranty of tbe quality of tbe goods to be shipped; that on tbe evening of tbe day that tbe order was given to Collins by tbe defendant tbe salesman prepared a memorandum order known as Exhibit A which was sent to tbe plaintiff company and upon which order tbe goods were subsequently shipped. Exhibit A is tbe customary order used by traveling salesmen containing date, order number, salesman’s name, directions as to shipment, description of tbe goods to be shipped, and tbe amount sold with price. This particular order was identified by plaintiff’s salesman and tbe circumstances surrounding its making were explained by him. True tbe defendant was not present at tbe time tbe order was prepared and was not acquainted with its contents until first seen by him upon tbe trial of this case; It was, however, in conformity to tbe oral order given by tbe defendant for tbe goods subsequently de-' livered.

Plaintiff after identifying tbe order offered it in evidence, but upon tbe objection of tbe defendant that it was incompetent and immaterial tbe court refused its admission. If tbe sole purpose of the introduction of the order was to establish the reasonable value of tbe goods in question, tbe ruling of tbe trial court is correct. It cannot be claimed that a mere recital of value in an order of this character would be binding upon a vendee in tbe absence of proof that tbe value as shown therein is tbe reasonable value of the goods at the time in question, or the agreed priee at the time of sale.

The court erred in sustaining defendant’s motion for a directed verdict and therefore this cause is — Reversed and remanded.

Stevens, C. J., WeaveR and PrestoN, JJ., concur.