Greenburg v. Saul

• Decision Date: 10 February 1908
• Court: Mississippi Supreme Court
• Parties: HENRY GREENBURG v. HARRIS SAUL ET AL

45 So. 569

91 Miss. 410

HENRY GREENBURG v. HARRIS SAUL ET AL

Supreme Court of Mississippi

February 10, 1908

October 1907

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Saul and others, doing business under the copartnership name of Saul Brothers & Company, appellees, were plaintiffs in the court below, and Greenburg, appellant, was defendant there. From a judgment in favor of plaintiffs, predicated of a peremptory instruction, defendant appealed to the supreme court.

The suit was for a balance on indebtedness for merchandise purchased by defendant from plaintiffs. The account sued upon was duly sworn to, under Code 1906, § 1978. The defendant filed an affidavit in the cause affirming "that he (defendant) does not owe the above account or any part thereof, but that the same has been fully paid." On the trial plaintiffs, in addition to the affidavit to their account, read in evidence depositions proving the correctness of the account sued upon. Defendant sought to introduce evidence to controvert the claim of the plaintiffs, but the trial court sustained the objection of the plaintiffs based on Code 1906, § 1978 thereto, and would not allow the evidence to be introduced. No evidence to prove payment of the debt was offered by defendant.

Code 1906, § 1978, above referred to, is as follows:

"A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account and that it is due from the party against whom it is charged and in any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due."

Affirmed.

Quin & Williams, for appellant.

Greenburg's defense was that he paid the account in full, and he sought to introduce evidence of this by profert of a statement from plaintiffs showing the true amount, as originally existing, to be $ 100 less than subsequently claimed by plaintiffs. He sought further to testify that he had paid this amount, being $ 100 less than was subsequently claimed by plaintiffs. The court below refused to allow such proof.

If the court below was correct in refusing to admit such proof under appellant's affidavit of non-indebtedness on file, it was wrong in giving a peremptory instruction in favor of the plaintiffs. It was an issue of fact, for the jury's determination, which of the two statements of plaintiff's was correct; one showing the amount of original indebtedness to be $ 100 less than was subsequently claimed by and on the subsequent sworn statement of plaintiffs, on which their suit was brought.

George Butler, for appellees.

Only two propositions are involved in this case: first, the construction of Code 1906, § 1978; second, independent of this Code section, whether plaintiffs were not entitled to a judgment as a matter of common law.

This court has repeatedly held that the only effect of Code 1906 § 1978, was to dispense with all proof of the items and correctness of the original account upon the plaintiff's making affidavit of its correctness and of its being due from the party against whom it is charged;...