Moore v. E. Holdoway & Co.

• Decision Date: 24 November 1903
• Citation: 138 Ala. 448,35 So. 453
• Parties: MOORE v. E. HOLDOWAY & CO.
• Court: Alabama Supreme Court

35 So. 453

138 Ala. 448

MOORE v. E. HOLDOWAY & CO.

Supreme Court of Alabama

November 24, 1903

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by E. Holdoway & Co. against John J. Moore. Judgment for plaintiff, and defendant appeals. Reversed.

Powell & Blackburn, for appellant.

H. K White, for appellee.

HARALSON J.

The complainant claims of the defendant "thirty six dollars due from defendant by account stated between plaintiff and defendant, on, to wit, December 11th, 1895, for six volumes of Encyclopedia Brittanica and American Supplement, which plaintiff sold to defendant upon his written request and order dated, to wit, December 5th, 1895, at the agreed price of six dollars per volume."

On the complaint was indorsed, "The account on which the suit is brought is verified by affidavit of the plaintiff, E Holdoway, who is a non-resident, residing in St. Louis Mo."

The pleas were nonassumpsit, payment and statute of limitations of three years.

The plaintiff offered in evidence the account sued on, which is as follows: "J. J. Moore to E. Holdoway & Co., 1895 Dec. 11th. To Encyclopedia Brittanica, vols. 24, 25, and 4 vols. Supt., $36.00."

This account was verified, as to the correctness, by the oath of the plaintiff, on a day previous to the institution of the suit.

The defendant objected to the introduction of said Moore account, because the same was irrelevant, incompetent and immaterial; and because the suit being on an account stated, said paper did not tend to prove any issue involved in the suit, which objections were overruled, and said account was allowed to be read in evidence.

This being all the evidence, the court, at the request of plaintiff, charged the jury, "That under the evidence in this case they must find a verdict for the plaintiff," and refused the general charge as requested by defendant.

The only question important to be decided is, whether said verified account was properly admitted in evidence.

To make an account stated, there must be a mutual agreement between the parties, and an assent to the account as rendered.

To maintain the action as averred in the complaint, the plaintiff must prove an account stated; that, and nothing less will support his allegations. "An account stated is an account balanced and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a...