Clements v. Mayfield Woolen Mills

• Decision Date: 20 November 1900
• Citation: 29 So. 10,128 Ala. 332
• Parties: CLEMENTS v. MAYFIELD WOOLEN MILLS.
• Court: Alabama Supreme Court

29 So. 10

128 Ala. 332

CLEMENTS v. MAYFIELD WOOLEN MILLS.

Supreme Court of Alabama

November 20, 1900

Appeal from circuit court, Coffee county; John P. Hubbard, Judge.

Action by the Mayfield Woolen Mills against R. A. Clements. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The complaint contained two counts, the first declaring upon an account stated, and the second claiming the sum sued for as due for goods, wares and merchandise sold by the plaintiff to the defendant. On the summons and complaint there was the indorsement that the account sued on was verified by affidavit. The defendant pleaded the general issue of non assumpsit.

Upon the trial of the cause, the plaintiff introduced in evidence an account containing several items for goods sold by the plaintiff to the defendant and showed an account due as averred in the complaint. To this account there was attached an affidavit made by the secretary of the plaintiff in which the affiant stated on his own knowledge that the account was just and true, and that the amount shown to be due was correct, after allowing all just and lawful offsets by payment and credits. This was all the evidence in the cause. The defendant requested the court to give the general affirmative charge in his behalf and duly excepted to the court's refusal to give the same as asked.

The judgment rendered in the case by the court was as follows "This day came the parties by attorneys, and the defendant says nothing in bar or preclusion of plaintiff's demand, and the amount of plaintiff's damages being uncertain, a writ of inquiry is awarded. Then came a jury of twelve good and lawful men, to wit, J. J. Ward and eleven others, who being legally sworn and impaneled on their oaths say: 'We the jury find for the plaintiff and assess his damages at $138.03.' It is therefore considered and adjudged by the court that the plaintiff in this cause have and recover of the defendant the sum of $138.03, together with the costs in this behalf expended, for which let execution issue.'

The defendant appeals, and assigns as error the refusal of the court to give the general affirmative charge, and the judgment as rendered in favor of the plaintiff.

Mulkey & Mulkey, for appellant.

HARALSON J.

1. There are two counts in the complaint, one declaring on an account stated, and the other for goods, wares and merchandise sold by the plaintiff to defendant; and the...