Anniston Soil Pipe Co. v. Central Foundry Co., 7 Div. 612

• Decision Date: 26 September 1963
• Docket Number: 7 Div. 612
• Citation: 275 Ala. 545,156 So.2d 637
• Parties: ANNISTON SOIL PIPE COMPANY v. CENTRAL FOUNDRY COMPANY.
• Court: Alabama Supreme Court

Page 637

156 So.2d 637

275 Ala. 545

ANNISTON SOIL PIPE COMPANY v. CENTRAL FOUNDRY COMPANY.

7 Div. 612.

Supreme Court of Alabama.

Sept. 26, 1963.

Young & Young, Anniston, for appellant.

Merrill, Merrill, Vardaman & Williams, Anniston, for appellee.

MERRILL, Justice.

This is an appeal by defendant below from a judgment overruling defendant's motion for a new trial in a cause wherein plaintiff secured a judgment of $31,224.86.

Appellee sued on an account in code form and appellant replied with the general issue. At the conclusion of the trial the court gave the affirmative charge without hypothesis for appellee.

One of the argued grounds in the motion for a new trial is that the court erred in admitting the statement of account into evidence because it was not attached to the complaint. Tit. 7, § 378, Code 1940, provides in part:

'In all suits upon accounts, an itemized statement of the account, verified by the affidavit of a competent witness, * * *, is competent evidence of the correctness of the account, if the plaintiff, at the time of bringing his suit files with his complaint or other initial pleading such verified itemized statement and indorses on the summons or complaint, or other original process, the fact that the account is verified by affidavit; * * *.'

Here, the verified statement was filed in the office of the circuit clerk at the same time the suit was filed. The summons and complaint concluded with this statement: 'This suit is on an itemized account verified by affidavit.'

An averment in the complaint that the account is verified by affidavit, is, in substance, an endorsement on the summons and complaint, as required by the statute. Alexander v. Moore & Kornegay, 111 Ala. 410, 20 So. 339; Lunsford v. Butler, 102 Ala. 403, 15 So. 239. And in the absence of a sworn denial by defendant, as provided by § 378, the account is competent evidence of the correctness of the items contained therein. Authorities supra.

Moreover, even if the account had been inadmissible, the ruling of the court admitting it would have been harmless error because the defendant admitted the correctness of the account. Hawie v. Kelly, 256 Ala. 31, 53 So.2d 609.

Appellant relies on the following sentence in Armour Fertilizer Works v. Kinney, 216 Ala. 547, 114 So. 41:

'Such a statement of the account would have been admissible in evidence, had it been duly verified by affidavit, and attached to the complaint, with an allegation of that fact in or indorsed upon the complaint, unless denied by defendant's sworn plea duly filed. * * *.' (Emphasis supplied.)

The statement of account in that case was inadmissible under the statute (now Tit. 7, § 378) because it was not verified, but the words 'and attached to the complaint' were evidently inadvertently added, because the statute does not require the verified statement to be attached to the complaint.

The next argued ground of the motion for a new trial is that the court erred in excluding appellant's evidence tending to show that the president of the plaintiff corporation had agreed that appellant should not pay plaintiff for the merchandise making up the account sued on, it being the intention of the parties that plaintiff would acquire all the corporate stock of appellant.

Without discussing the several grounds given by the court why this testimony was excluded, it suffices to say that it was properly exclued under the pleadings. The evidence shows that appellee and appellant were negotiating a purchase and sale which never materialized. This excluded evidence concerned a special purported contract which had not been raised by the plea of the...