Sims v. Howell Bros.

15 S.W. 120, 4 Willson 267

• Court: Court of Appeals of Texas
• Decided: December 6, 1890
• Docket: No. 3550
• Status: Published

Opinion

Opinion by

Will-son, J.

§ 180. Verified account when not due is not evidence; affidavit must correspond voith the account; case stated. Appellee sued appellant upon two accounts aggregating-$247.90, both of which accounts were verified by affidavit, and neither of which were due at the time of the institution of the suit, but an attachment was sued out at the time of the institution of said suit. Appellee recovered judgment for the full amount sued for, and for costs. On the trial the accounts sued upon were introduced in evidence by appellee over the objection of the appellant, and no other evidence was adduced by either party. At the time the accounts were verified, they were not due, and could not be verified by affidavits, so as to make them admissible in evidence under article 2266 of the Revised Statutes. [1 App. C. C., § 379.]

December 6, 1890.

Both of the accounts appear to have been originally made out against R. B. Sims, and the name of the appellant afterwards written over that of R. B. Sims, and the affidavit verifying one of said accounts states that the same is an account against R. B. Sims. No evidence was adduced or offered by appellee explaining the alterations in the accounts, and the variance between the affidavit and account. We are of the opinion that the court erred in admitting said accounts in evidence.

Reversed and remanded.