Finck v. Brewer

96 So. 402, 133 Miss. 9, 1923 Miss. LEXIS 103

• Court: Mississippi Supreme Court
• Decided: May 21, 1923
• Docket: No. 23003
• Status: Published

Opinion

Sykes, P. J.,

delivered the opinion of the court.

The appellant brought suit in the circuit court against Earl Brewer and John Cleary as partners engaged in the mercantile business. To the declaration is attached what purports to be an account of the indebtedness sworn to by the treasurer of the appellant corporation.

Upon the objection of the appellee Brewer, the appellant was not permitted to introduce this account. It seems that one of the reasons why the court sustained the objection was because the account was not sworn to by a proper agent of the plaintiff. We think, however, the treasurer of a corporation under our statute can make this affidavit.

The court was correct, however, in sustaining this motion for the reason that the account is.not made out in accordance with the statute.

Section 517, Hemingway’s Code (section 734, Code of 1906) provides that there shall be filed with the declaration in every cause on an open account a copy of the account or bill of particulars of the demand; and evidence thereof shall not be given on the trial, unless so annexed or filed.

Section 1638, Hemingway’s Code (section 1978, Code of 1906), provides that, in a suit upon an open account, the plaintiff may malee affidavit to the correctness of the account, and unless the correctness of the account be denied under oath, he shall be entitled to judgment thereon.

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. Pipes v. Norton, 47 Miss. 61.

The account in this case is made out as follows: We have “Feb. 13, mdse, 303 00.” This evidently means a purchase on February 13th of merchandise for the sum of three hundred and three dollars. Lower down in the account this particular purchase is attempted to be itemized as follows:

Lot No. Price.' Dozens Amount. Total.

52 72.00 2 144.00

102 27.00 2 54.00

780 35.00 3 105.00 303.00

This account must refer to the lot number in the cata-logue of the plaintiff, evidently the price a dozen of some hind of merchandise. We cannot tell from it the character of goods purchased. It is really but a string of figures, from which the defendants cannot tell for what they are charged.

By the defendant Cleary, the plaintiff proved that he ordered certain goods, but failed to prove that the goods were delivered.

The partnership was denied under oath by the defendant Brewer. There was testimony by the defendant Cleary that the partnership existed, which was denied by Brewer.

Since we are of the opinion that there was no testimony to show that the goods were received, we are not called upon to pass upon the sufficiency of the testimony as to whether or' not the question of partnership should have been submitted to the jury.

Affirmed.