Finley v. Armstrong

78 So. 177, 117 Miss. 289

• Court: Mississippi Supreme Court
• Decided: March 15, 1918
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

C. C. Finley, administrator for C. D. Finley, deceased, sued out an attachment in the circuit court of Leflore county against Lee Armstrong, the appellee, alleging that Armstrong was indebted to C. C. Finley in the sum of one thousand two hundred and thirteen dollars and one cent. To the declaration was attached a statement of account, bearing numerous items and covering several pages of the record, showing a total of seven thousand six hundred and eighty-four dollars .and sixty-four cents, which was credited with the gross sum of six thousand four hundred and seventy7one dollars and sixty-three cents. The defendant in attachment pleaded the general issue and filed an offset, alleging that the plaintiff was due money to the defendant/filing an itemized account with the plea of offset. •The defendant also filed a motion to require the plaintiff to furnish a more particular account than the one sued on, in order that he may prepare his defense, alleging in said motion:

“That said account is unintelligible in this, that the credits thereon are not itemized, and it is impossible for-him to tell just what he is credited with; that he was entitled to credits each week; and that these credits should he itemized in order that he may properly defend this suit.”

' The whole account appended to the plaintiffs declaration is badly itemized, hut the motion to make specific did not point out the defects in the account itself, hut particularly called attention to defects in the credits, which were credited as a total sum. The plaintiff itemized the credits as required, and the cause went to trial. The transactions occurred partially in the life of C. D. Finley and partially during the ahministration of his estate hy the appellant. The appellant in the court helow moved to amend the affidavit and proceedings .so as to show that the debt was due to the estate of C. D. Finley and to him as administrator, and not individually, which motion was allowed. The hooks of C. D. Finley and of the administrator after his death, with reference to the business of C. D. Finley, were introduced in evidence, and the hooks were objected to because the accounts shown therein were not particularly itemized as to very many of the items. As an instance of the way items were charged, on July 19, 1915, there were charges as follows:

“Meat 10J4 lbs. tomatoes 1.20 2 sacks flour 130 hominy .50 cabbage .30 14 lbs. meal beans $2.10 sugar .90 pepper .10 salt .05 oats 2 sacks oats 12 sacks... .$51.89.”

And on the 20th: “Potatoes 35 lbs. hay .$6.00.$7.05.” As the various items in the account attached to the declaration, and in the books introduced, were charged on the books in this imperfect way, it is contended that the account was insufficient to support .a suit. As the books were produced and offered in evidence, the various items were objected to by the defendant. In some instances the objections were sus-tained, and in some instances the ruling of the court was reserved. At the conclusion of plaintiff’s evidence the defendant moved the court to exclude the following items:

“July 18th, 1915,13 lbs. of meat; next, same date, one sack of oats; next, July 19th, meat 10% lbs. and oats two sacks and 12 sacks and 14 lbs. of meal, the difference being $44.64; and August 5th, hay $20 ; on August 10th, hay 1900 lbs., no amount; cash, $5.50; cash $25.00; cash $700; cash $57.20 and cash $19.35; August 28th, hay $22. Now, all from August 28th to September 10th, inasmuch as the bookkeeper testified he did not keep the books during that time, but was absent and knew nothing about 'the transactions; defendant also moves to exclude the item, use of wagon $5.50; man account, $7.95 and automobile hire $6; 15 bushels of corn $11.25; on the 23d of Sept, meat, $4.40; flour, $2.60; oats $36; hay $37; corn $5.40; corn $40.50; com $58.50; on Oct. 9th Armstrong’s man account, $46.10; cash by C. Johnson, $24.95; J. O. Statten account, $74.85; Jones account, -1:89; Townes, $38.74; Wilkie, $2.80; Nov. 9th, meat $10.95; Pork $5.10; lard $1.20; $5.30; lard $1.50; corn $3.60; corn $3.60; beef $4.20; meat $3.85; flour, $2.20; coffee, $1.40; sugar, 1.30; Nov. 10th, feed $18; oats $54.00; $18 feed; oats $54; meat $2.72; flour $2.20; meat $1; meat $10.95; and same date, J. C. Stat-ten, $56.74; flour $2.20; then on the 15th of Nov. Armstrong’s man account $73.93; T. B. Jones account, $2.01 Wilkie’s account, $79.35. Now, on the 23d of Nov., oats $57; chops $18.50; Dec. 3d, axes and handles $6; corn, $5.40; merchandise $1.10; on the 5th, com $3.60; then on the' 9th of Dee. chops $18; and on the 21st of Dec. oats and chops, $75.15, and Jan. 4th meat $8, flour $1.65, oats $3; hay $1; on the 28th of January, oats $3; on the 9th of January, oats $3; and 30th of Jan. oats $3; and ’31st oats $3.00; Feb. 5th oats $3.25; 7th oats $3.25 9th, oats $3.25; 12th, oats $6.50; 21st of Feb. oats $16.25 and labor $236.49; on March 10th, meat $11.96, and 21st oats $6; chops $12, oats $9. Then on the 31st of March, oats $3; hay $6; on Maxell 30th, oats $6; on Apxil 4th, oats $3; oats $3; and on the 5th of Apxil, oats $3. ’ ’

The conxt xuled as follows:

“The motion is sustained as to the items cash, which shows'no dates $5.50, $25, $700, $57.20, $Í9.35, and the item chaxged nndex the items of Septembex 10th, which beaxs no date, nse of wagon $5.50; man account $7.95; and also the items on page 3 of the account, Axmstxong man account, $46.10; $24.95; Statten account, $74.85; Jones account, $1.89; Townes account, $38.74; 'Wilkie account, $2.80', and on page 4 of the account, on which appeaxs nndex date of Nov. 10th, J. C. Statten account •$56.74; and the item of Nov. 15th, Axmstxong man account, $73.93; T. B. Jones account, $2.01; Wilkie’s account, $79.35; nndex Maxch, 1916, labox $236.49, and the motion to exclude is ovexxuled as to the othex items mentioned in the motion; the above amounting in the aggxegate to $1,466.74.”

Pxiox to this xuling by the conxt and duxing the pxo-duction of testimony the defendant intxoduced the book-keepex who entered most of the items, and offered to prove by the bookkeeper from his recollection, refreshed by inspection of the books, as to what the items consisted of, that they were properly charged in the course of business, and were furnished to the defendant. The court ruled that if the witness could testify from his independent recollection, unaided by the books, that he could testify to same, but refused to permit him to use the books for the purpose of refreshing his recollection. ■ The plaintiff also produced W. C. Finley and C. C. Finley to prove certain items embraced in the account, Mr. C. C. Finley testifying as to a one thousand two hundred dollar cash charge, and Mr. W. C: Finley testifying, or offering to testify, to a seven hundred' dollar item embraced in the items excluded by the court. The' court ruled that W. C. Finley could not testify as to the seven hundred dollar item embraced in tbe items excluded by tbe court, because tbe item appearing on tbe account sued on in tbe lump sum of seven hundred dollars is without date. Plaintiff also ashed permission to amend, tbe declaration sued on so as to show tbe amounts of various items on which they were charged and tbe prices, for which they were charged on the books of account, which the court refused to permit. Throughout the trial of the case items, were constantly objected to because it was contended that cash items were not properly chargeable in a book account, and that the book was not evidence as to such items. It is unnecessary to go into' each particular, objection and ruling in this opinion, but they are all governed by the same principles.

It was error for the court to refuse to permit plaintiff to amend his declaration so as to show the proper-items embraced in the account. This court has recently in two cases touched on the principles involved in this case. In the case of Duffy v. Kilroe, 76 So. 681, Chief Justice Smith, speaking for the court, held that an account containing visits of a physician to a patient, showing sixty-three visits at five dollars, and four visits at ten dollars, in April, sixty-three visits at five dollars,, and two visits at ten dollars, in May, fifty-nine visits-at five dollars, and six visits at ten dollars, in June, forty-six .visits at five dollars, and seven visits at ten dollars, in July, five visits at five dollars, and one visit at ten dollars, in August, and sixty-two visits at five-dollars, and seven visits at ten dollars, in September, was a sufficient itemization to admit the account to probate under the statute requiring accounts to be itemized in such cases. In the case of Barner v. Rule, 77 So. 521, Justice Stevens, speaking for the court, held that cash items entered in the regular course of business-were properly chargeable upon the books of account and that the books were evidence to establish such charges made in the regular course of business.

We tbink also that the bookkeeper had' a right to look at the items on the hook, and if, after doing so, he could state from memory what the items consisted of, and what was the agreed price or fair market price, he should have been permitted to do so. He testified that he conld do so if allowed to look at the books. It was also competent to prove the cash items by the witnesses C. ,C. Finley and W. C. Finley, independently of the books and of the way in which they appeared upon the account sued on.

Some of the items embraced in the account had the name and quantity of the article charged, but not the price at which it was sold. Plaintiff offered to amend by inserting the amount and by proving the same before the jury by witnesses, Among the items in the account excluded by the court were items charged for laborers for Armstrong in gross amount, that is, the sum total paid to laborers or other persons on behalf of Armstrong was charged under the name of the party, or one of the parties, in a gross sum; for instance “Staffer account, seventy-four dollars and eighty-five cents; , Townes account, thirty-eight dollars and seventy-four cents; Wilkie account, two dollars and eighty-six cents;' Armstrong man account seventy-three dollars,” etc., charged to names in gross sums, but the plaintiff offered to introduce accounts itemized, and also to prove by independent evidence that these sums were furnished at Armstrong’s instance' and for his benefit to said parties. We think the court should have permitted the necessary -amendments, and should have received the proof to show that said money was furnished at the instance and request" of the defendant.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.