Merriman Co v. Thomas & Co

• Decision Date: 15 September 1904
• Citation: 103 Va. 24,48 S.E. 490
• Court: Virginia Supreme Court
• Parties: MERRIMAN CO. v. THOMAS & CO.

48 S.E. 490

103 Va. 24

MERRIMAN CO.

v.THOMAS & CO.

Supreme Court of Appeals of Virginia.

Sept 15, 1904.

ASSUMPSIT — DECLARATION — AFFIDAVIT—REQUISITES—VERIFICATION BY BOOKKEEPER—INTEREST.

1. Code 1887, § 3286, provides that when, in

assumpsit, an affidavit is filed with the declaration, stating that the amount claimed is justly due, etc., a plea in bar shall not be received unless verified, in the absence of which judgment shall be for plaintiff. Held, that an affidavit by plaintiff's bookkeeper, filed with the declaration, was insufficient to authorize judgment in favor of plaintiff.

2. Under Code 1887, § 3286, providing that in an action of assumpsit on a contract for the payment of money, if plaintiff file with his declaration an affidavit stating the amount of his claim, that such amount is justly due, and the time from which plaintiff claims interest, a plea in bar unaccompanied by affidavit shall not be received, an affidavit failing to state "the time from which plaintiff claimed interest" was defective.

Error to Circuit Court, Giles County.

Action by Thomas & Co. against the Merriman Company on an account. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Martin Williams and S. W. Williams, for plaintiff in error.

Jas. J. Johnston, for defendant in error.

KEITH, P. Thomas & Co. instituted their action in assumpsit in the circuit court of Giles county against the Merriman Company to recover $338.03. An itemized account was filed, accompanied by an affidavit in the following terms: "State of Virginia, City of Roanoke, to-wit:

"M. L. Keister, bookkeeper for the firm of F. B. Thomas & Co., personally appeared before me, G. Frank Helms, a notary public in and for the city and state aforesaid, and made oath that the attached account of $338.03 against The Merriman Co., Incorporated, Penovir, Va., Is just and correct and no part of the same has ever been paid..

"Given under my hand this the 29th day of Dec, 1903.

"My commission expires Jany 15th 1904. "G. Frank Helms, Notary Public."

The defendant appeared by counsel, and tendered its plea in writing of nonassumpsit, to the filing of which plea the plaintiff objected, because it was not verified by affidavit. The court sustained the objection, and refused to permit the plea to be filed, and entered judgment in favor of the plaintiff, to which action of the court the defendant excepted, and the case is before us upon a writ of error.

Section 3286 of the Code of 1887 is as follows:

"When, in action of assumpsit, no plea in bar to be received, or inquiry of damages made, unless defendant file with plea affiedavit denying plaintiff's claim, but judgment given therefor.—in an action of assumpsit on a contract, express or implied, for the pay ment of money (except where the process to answer the action has been served by publication), if the plaintiff file with his declaration an affidavit made by himself or his agent, stating therein, to the best of the affiant's belief the amount of the plaintiff's claim, that such amount is justly due, and the time from which the plaintiff claims interest, no plea in bar shall be received in the case, either at rules or in court, unless the defendant file with his plea the affidavit of himself or his agent, that the plaintiff is not entitled as the affiant verily believes, to recover anything from the defendant on such claim, or stating a sum certain less than that set forth in the affidavit filed by the plaintiff, which, as the affiant verily believes, is all that the plaintiff is entitled to recover from the defendant on such claim. If such plea and affidavit be not filed by the defendant, there shall be no inquiry of damages, but judgment shall be for the plaintiff for the amount claimed in the affidavit filed with his declaration. If such plea and affidavit be filed, and the affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff. judgment may be taken by the plaintiff for the sum so admitted to be due, and the case be tried as to the residue."

If the affidavit which accompanied the declaration and account conforms to the provisions of the section just quoted, then the circuit court properly rejected the plea offered by defendant, and...