Motive Parts Warehouse, Inc. v. D & H Auto Parts Co., Inc., 54650

• Decision Date: 06 March 1985
• Docket Number: No. 54650,54650
• Citation: 464 So.2d 1162
• Parties: MOTIVE PARTS WAREHOUSE, INC. v. D & H AUTO PARTS COMPANY, INC.
• Court: Mississippi Supreme Court

Page 1162

464 So.2d 1162

MOTIVE PARTS WAREHOUSE, INC. v. D & H AUTO PARTS COMPANY, INC.

No. 54650.

Supreme Court of Mississippi.

March 6, 1985.

Robert C. Dean, Miller, Dean & Cordell, Greenville, for appellant.

Philip Mansour, Jr., Mansour & Thomas, Greenville, for appellee.

Before ROY NOBLE LEE, P.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

This is an open account suit by Motive Parts Warehouse, Inc. (MPW), an auto parts distributor, against D & H Auto Parts Co., Inc. (D & H), an auto parts store, for $8,900.19. D & H denied that the account was itemized and filed a counter-affidavit specifying numerous objections to specific items but not all of the items included in the open account.

At trial, D & H objected to the admission of any evidence in support of MPW's claim on the basis that the account was not itemized in accordance with Mississippi Code Annotated Sec. 13-1-141 (1972), and Mississippi Code Annotated Sec. 11-7-45 (1972). This objection was sustained and MPW then sought a voluntary dismissal, which the trial court refused. MPW then rested and the trial judge, on motion of D & H for dismissal, directed a verdict for D & H.

On appeal, MPW alleges that the trial court

1. Erred in sustaining D & H's objection to any further proof on the account on the basis that MPW's itemized account did not comply with the statutes; and

2. Abused its discretion in denying MPW's motion for voluntary dismissal.

MPW's amended complaint sought to recover payment for goods delivered to D & H between May 26, 1981, and November 10, 1981, for a total amount of $8,900.19, including a 1% service charge. D & H's answer included a counter-affidavit denying that the account was properly itemized in several respects. First, D & H points out that the account has an opening balance of $7,387.93 and that D & H did not owe MPW that amount, and that in any event that sum is not itemized. Second, D & H denied owing the service charges listed in the account from September, 1981, to August, 1982. Third, D & H objected to the item dated October 14, 1981, listed as factory fel-pro shipment for $2,365.18 on the ground that it never received such merchandise nor is the item itemized. Fourth, D & H lists five pages worth of tools and parts that it denies purchasing or receiving. The items to which D & H objects cover only a small portion of the 153 page sworn itemized account submitted by MPW.

At trial, MPW called James Beckum as an adverse witness and, after preliminary questions, counsel for MPW asked him to describe the business dealings he had with MPW. Defense counsel requested a recess in chambers where he objected to any proof on the account. First, D & H alleged that the amended complaint did not conform with the order granting leave to amend because the amended complaint sought to include charges through November 10, 1981, when the original complaint only alleged charges through July 24, 1981. Second, defense counsel objected that neither the opening balance of $7,387.93 nor the item listed as factory fel-pro shipment for $2,365.18 was itemized, so that defendant does not know what comprises those two items. D & H pointed out that MPW acknowledged that it had to start with a zero balance and come forward, and was given leave to amend, but did not do so. D & H contended that the account must begin with a zero balance, and that the two items alone amount to $9500, which was more than MPW requests in this suit.

MPW conceded that it began with an opening balance of $7,387.93, but pointed out that further down on the same page of the statement there was a payment by check for $7,387.93. MPW contended that taking the opening balance together with the payment put the account at a zero balance. MPW stated that the only reason for including the $7,387.93 opening balance was to get to a zero balance and show the period from which payment had not been made.

MPW contended that it was not suing for $7387.93 but only the charges accruing thereafter. Counsel for D & H contended that there was no way to show that the $7387.93 credit was in payment for the outstanding balance. D & H pointed out that the opening balance was added into the total figure, so that it was an unitemized charge that MPW was seeking to recover, in violation of the statute. MPW contended that if it did not begin with the outstanding balance then the account would show that MPW owed D & H money. The trial court acknowledged that the credit was the same amount as the opening balance, but declined to recognize that the credit applied to the opening balance and not to other items subsequently charged. Therefore, the trial court sustained D & H's objection.

MPW asked for a voluntary dismissal, to which D & H objected on the ground that MPW had been dilatory during the duration of the law suit. MPW pointed out that there was no prejudice to D & H from a non-suit, but there would be great prejudice to MPW, since they would lose entirely their claim. The trial court refused to allow a voluntary non-suit. MPW offered into evidence for the record his sworn itemized account. MPW objected to the defendant's counter-affidavit for failure to include the invoice numbers along with the remaining description and prices. The trial court overruled this objection. MPW rested and the trial court directed a verdict for the defendant.

I.

DID THE TRIAL COURT ERR IN SUSTAINING THE DEFENDANT'S

OBJECTION TO ANY FURTHER PROOF ON THE ACCOUNT ON

THE GROUND THAT THE SWORN ACCOUNT WAS

NOT SUFFICIENTLY ITEMIZED?

Mississippi Code Annotated Sec. 13-1-141 (1972) provides that a person desiring to file suit upon an open account in his favor may make an affidavit to the correctness of such account and that it is due from the party against whom it is charged. In any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at trial, 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.

Mississippi Code Annotated Sec. 11-7-45 (1972) provides that there shall be annexed to or filed with the declaration in every case founded upon an open account, a copy of the account or bill of particulars of the demand ... and evidence thereof shall not be given on the trial unless so annexed and filed; and the same shall constitute a part of the record of the cause.

The general rule is that in an action on an open account a copy of the account does not satisfy Sec. 11-7-45 if it simply contains a statement of amounts due, without further itemization. The copy of the account must show the date of purchase, the kind of goods, the quantity, and the price in order to satisfy the statutory requirement. Philley v. Toler, 231 Miss. 512, 95 So.2d 783 (1957). This Court has found insufficient the copy of an account which merely stated $8,000 for money lent, Soria v. Planters' Bank, 4 Miss. 46 (1838); or $200 for professional services as private detective, Griffith v. Goodin, 202 Miss. 548, 32 So.2d 743 (1947); or $1,250, unitemized and $2,100, for initial material and labor, first, second and third charge for labor, and profit and overhead expense, Evans v. Central...