Brooks v. International Shoe Company
Decision Date | 11 February 1918 |
Docket Number | 144 |
Citation | 200 S.W. 1027,132 Ark. 386 |
Parties | BROOKS v. INTERNATIONAL SHOE COMPANY |
Court | Arkansas Supreme Court |
Appeal from Marion Circuit Court; John I. Worthington, Judge reversed.
Judgment reversed and cause remanded.
Allyn Smith, for appellant.
1. The complaint was not sworn to by plaintiff. Kirby's Digest §§ 3151, 6121-6; 27 Cal. 295; 1 Denio (N.Y.) 662; 5 Ark. 32. See also 14 Ark. 237; 21 Id. 519; 24 Id. 410; 91 Id. 265.
2. No itemized account was filed. 19 Pa. Co. 641; 20 Weekly (Pa.) 21; 6 Id. 441; 60 S.E. 121. See also 1 Wait Ac. & Def. 190, § 3; Stephens Pl. 296; Kirby's Digest § 6128; 172 S.W. 871.
3. The answer raised an issue. Kirby's Digest, § 6098; 6 Ark. 250; 50 Id. 466. The complaint failed to state a cause of action. 10 Kans. 131. The account was a lump or gross account and insufficient. Cases supra.
J. H. Black, for appellee.
1. The complaint was properly verified. Kirby's Digest, § 841; 20 S.W. 1069; 22 Id. 1101.
2. The account was sufficient; it was for shoes.
3. The motions are not made part of the record by bill of exceptions. 131 Ind. 468; 30 N.E. 703; 140 Ind. ; 39 N.E. 862; 67 Ark. 320; 54 Id. 463.
4. The answer was merely a plea of nil debit and insufficient. Kirby's Digest, § 6098; 35 Ark. 109; 35 Id. 104; 46 Id. 132; 60 Id. 606. See also Kirby's Digest, § 3151.
Appellee, a mercantile corporation, instituted this action against appellant in the circuit court of Marion County to recover on an account for merchandise sold and delivered, in the following form, and duly verified, filed with the complaint as an exhibit:
"E. Brooks, Rush, Ark.
To Statement rendered.
6/13/16 To Mdse
$ 27.12
6/13
735.75
6/24
6.60
7/10
5.19
9/11
3.38
10/9
1.8 7
10/16
1.38
10/20
3.65
Total
$ 784.94
6/9/16 By Cash
$ 200.00
8/1 By Cash
33.70
12/8 By Cash
50.00
12/6 By Mdse.
1.10--
$ 284.80
Balance due
$ 500.14
Interest
15.00
Total
The affidavit verifying the account was made by one of the officers of the corporation, the vice president, who stated in the affidavit that the facts stated were within his personal knowledge. Appellant filed a motion to require appellee to make the account or bill of particulars more specific by giving the items. In other words, the motion asked that the court require that an itemized account be filed. This motion was overruled whereupon appellant filed an answer as follows:
Appellee then moved for a judgment on the pleadings, and the court held that the answer was insufficient and rendered judgment against appellant for the amount of the account. Appellant saved his exceptions and obtained an appeal to this court without filing motion for new trial. The statute on the subject of pleadings provides among other things as follows:
The question for consideration in testing the correctness of the court's ruling in refusing to require a more detailed account to be filed involves an interpretation of the word "account" as used in the statute. It will be observed that the account filed by appellee did not purport to be an itemized account, but only to show the total amount of bills alleged to have been sold on the dates mentioned without giving a complete inventory of the goods sold.
The word "account" is said to have no inflexible technical meaning and is differently construed according to the connection in which it is used. However, in mercantile transactions it is invariably used in the sense of a detailed or itemized account. Bouvier defines the word as "A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation." Substantially the same definition is given in 1 Corpus Juris, p. 596, where it is said: "To constitute an account, there must be a detailed statement of the various items, and there must be something which will furnish to the person having a right thereto information which will enable him to make some reasonable test of its accuracy and honesty." The California Supreme Court speaking on this subject, said: Conner v. Hutchinson, 17 Cal. 279. At common law an action on account was in the form of an action of debt or assumpsit and it was sufficient to describe the goods sold and delivered in general terms without giving the items, but statutes were passed in many States changing this rule and this was the obvious design of our statute which was copied literally from the Kentucky code. Mr. Bliss in his work on Code Pleadings (Sec. 298) after referring to the common law rule on the subject, calls attention to the fact that in many of the States "this want of certainty thus tolerated in debt and assumpsit is carefully guarded against" by the enactment of statutes changing the common law rule, and he mentions Arkansas as being one of the States where the change has been wrought by statute. In Sutherland on Code Pleading (Vol. 2, Sec. 2297) the rule is stated as follows:
Measured by this rule the account filed by appellee with his complaint was insufficient, and appellant was entitled to have it made more definite and certain. The fact that invoices of the goods had been furnished at the time of the sale of the goods did not relieve the pleader from compliance with the statute by furnishing an itemized account. It may have been necessary to appellant's defense to have an itemized statement furnished. At least, he was entitled to have the statute complied with by his adversary before he was called upon to answer the complaint.
The court erred, therefore, in overruling appellant's motion. The answer was insufficient, for it neither contained a denial of the purchase of the goods, nor pleaded payment. The language of the answer constituted merely a common law plea of nil debit, which...
To continue reading
Request your trial-
Snow v. Wood
...Crawford & Hooker, for appellant. When an action is brought on an account, the account must be itemized and filed with the complaint. 132 Ark. 386. The suit barred by limitations. C. & M. Dig., § 5950. Where a merchant sells a planter or farmer, the universal custom is that the account is d......
-
Terry v. Klein
...the claim by a suit in court, then for purposes of defense the owner may insist upon the presentation of an itemized claim. Brooks v. International Shoe Co., supra. But in testing the sufficiency of the account so far concerns the preservation of the lien, we hold that it is not essential t......
-
Standard Lumber Company of Pine Bluff v. Wilson
... ... ordinarily construed, an itemized account (Brooks v ... International Shoe Co., 132 Ark. 386, 200 S.W ... 1027), this court has decided that ... ...
-
Terry v. Little
...and cites the case of Brooks v. International Shoe Company, 132 Ark. 386, 200 S.W. 1027, in support of his contention. The accounts in the Brooks case and in the instant case are different. In the Brooks case the account was for merchandise, and contained a number of debit items, presumably......