Wilbur v. Ellefson

Supreme Court of Arkansas

Wilbur v. Ellefson

129 S.W. 812, 95 Ark. 403, 1910 Ark. LEXIS 199

DecidedJune 20, 1910

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This text of 129 S.W. 812 (Wilbur v. Ellefson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wilbur v. Ellefson, 129 S.W. 812, 95 Ark. 403, 1910 Ark. LEXIS 199 (Ark. 1910).

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Opinion

Wood, J.,

(after stating the facts). Appellant contends that the court erred in instructing the jury that appellant’s cross complaint was denied by appellee. Section 3151 of Kirby’s Digest is as follows: “In suits upon accounts, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct shall be sufficient to establish the •same unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case the plaintiff shall be held to prove such part of his account as is thus denied by other evidence.”

Under this statute appellant by his cross complaint with the account attached, duly verified, made out a prima facie case, Hershy v. MacGreevy, 46 Ark. 501. If appellant had introduced this account and rested there, he would have been entitled to judgment for the difference between his account and that of appellee, which was conceded to be correct. But appellant testified as a witness, and his testimony disclqsed the fact that he had no account whatever against appellee, that the account on which he sued appellee was for work and labor performed for one Reynolds, and not for appellee. ''Appellant’s own testimony shows that there was no privity of contract between himself and appellee as to the account upon which he sues appellee.

Upon appellant’s own testimony there could be no recovery on the cross complaint against appellee. The judgment is therefore correct, and it is affirmed

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Wood, J.,

(after stating the facts). Appellant contends that the court erred in instructing the jury that appellant’s cross complaint was denied by appellee. Section 3151 of Kirby’s Digest is as follows: “In suits upon accounts, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct shall be sufficient to establish the •same unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case the plaintiff shall be held to prove such part of his account as is thus denied by other evidence.”

Under this statute appellant by his cross complaint with the account attached, duly verified, made out a prima facie case, Hershy v. MacGreevy, 46 Ark. 501. If appellant had introduced this account and rested there, he would have been entitled to judgment for the difference between his account and that of appellee, which was conceded to be correct. But appellant testified as a witness, and his testimony disclqsed the fact that he had no account whatever against appellee, that the account on which he sued appellee was for work and labor performed for one Reynolds, and not for appellee. ''Appellant’s own testimony shows that there was no privity of contract between himself and appellee as to the account upon which he sues appellee.

Upon appellant’s own testimony there could be no recovery on the cross complaint against appellee. The judgment is therefore correct, and it is affirmed

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Bluebook (online)

129 S.W. 812, 95 Ark. 403, 1910 Ark. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilbur-v-ellefson-ark-1910.