Walker v. Clark

68 So. 916, 109 Miss. 619

Opinion

Smith, J.,

delivered the opinion of the court.

One of the instructions given by the court below to the commissioner appointed to state the account between the parties hereto was to require appellant, J. M. .Walker, “to give date of all payments for which credits are claimed, to whom and for what paid, and to produce receipts where practicable.” This instruction was obeyed by the commissioner; and, in passing upon the exceptions to the account as stated by him, the court also seems to have acted upon the rule therein announced. This was error. The contract which forms the basis of this suit contains no provisions that Walker shall be entitled to credit for expenditures made by him only when he can establish the dates thereof and to whom they were made, nor that they must be evidenced, by receipts where practicable, and we know of no rule of law or practice so requiring. The commissioner, in stating the account and the court in passing upon the exceptions thereto, should have been governed by the ordinary rules of evidence.

jReversed and remanded.