Philley v. Toler

• Decision Date: 10 June 1957
• Docket Number: No. 40335,40335
• Citation: 231 Miss. 512,95 So.2d 783
• Parties: B. T. PHILLEY v. C. D. TOLER.
• Court: Mississippi Supreme Court

Page 783

95 So.2d 783

231 Miss. 512

B. T. PHILLEY v. C. D. TOLER.

No. 40335.

Supreme Court of Mississippi.

June 10, 1957.

Allen & Allen, Indianola, for appellant.

Lyon, Davis & Cook, Indianola, for appellee.

HOLMES, Justice.

The appellee, plaintiff below, brought this suit in the Circuit Court of Sunflower County against the appellant, defendant below, on an open account, demanding originally the sum of $9,959.34. The plaintiff by amendment later reduced his demand to $9,758.21, and thereafter, by a further amendment, allowed certain credits on his account reducing his demand to $7,729.59. The defendant filed an answer and cross-bill wherein he denied any indebtedness to the plaintiff and asserted a counterclaim against the plaintiff for an alleged overpayment in the original sum of $3,073.35, and later by amendment, in the sum of $3,183.94, and later by a further amendment, in the sum of $3,255.50. The defendant's proof on the trial fixed the amount of his claimed overpayment at $2,558.22. The defendant incorporated in his answer a plea in abatement, alleging the non-joinder of the Gulf Refining Company as a necessary party to the suit. This affirmative plea was overruled by the court and the parties were permitted to introduce proof as to the merits of their respective claims. At the conclusion of the evidence, the case was submitted to the jury under instructions which left to the determination of the jury the state of accounts between the parties and the question of indebtedness, if any, owing by the one to the other. The jury returned a verdict in favor of the plaintiff for $3,850. From this judgment the appellant prosecutes this appeal and the appellee has prosecuted a cross-appeal.

The litigation arose out of business relations between the plaintiff and the defendant extending over a long period of years beginning in 1937 and ending May 7, 1954. The defendant and his brother were owners of a vacant lot in Indianola. They leased this lot to the Gulf Refining Company under a contract whereby they obligated themselves to construct a service station building on the lot to be operated by the defendant and his brother. The contract provided a rental of $30 per month to be paid the defendant and his brother, which appears not to have been paid but in lieu thereof the plaintiff allowed the defendant one-half cent per gallon on gasoline purchased. The building was constructed and the operation of the service station was thereafter begun by the defendant and his brother, and later the brother sold out to the defendant and the defendant continued to operate the service station. The plaintiff was a distributor for the Gulf Refining Company in the area of Indianola.

Throughout the period of the operation of the station by the defendant from 1937 to May 1954, he purchased from the plaintiff certain products of the Gulf Refining Company such as gasoline, oil, tires, tubes and allied products of the Gulf Refining Company. The undisputed proof is that these products were shipped to the plaintiff by the Gulf Refining Company on consignment, and that the plaintiff became solely responsible to the Gulf Refining Company therefor, and that the plaintiff sold direct to the defendant, and that the Gulf Refining Company had no interest whatever in the claim asserted in this suit against the defendant. The evidence further shows that at first the transactions between the plaintiff and the defendant were on a cash basis but that later on the plaintiff began to extend to the defendant credit on his purchases. It is out of this operation and relationship that this suit arises. It is admitted by the defendant that he kept no books or records showing the state of accounts between him and the plaintiff, and that for the establishment of his counterclaim he relied largely upon the books and records of the plaintiff. The accounts of the respective parties filed in this action are lengthy and the pleadings and exhibits are voluminous, and we shall refer to only such portions thereof as may be pertinent to this decision.

The appellant has assigned numerous grounds for the reversal of the judgment of the court below, and among them are: (1) That the court erred in overruling his plea in abatement based upon the non-joinder of the Gulf Refining Company; (2) that the court erred in overruling his motion for a continuance made just prior to entering upon the trial of the case; (3) that the court erred in admitting in evidence over his objection 1,173 invoices attached by amendment to the account of the plaintiff when it appeared that many of them were copies and the absence of the originals was not accounted for, and (4) that the court erred in refusing the appellant's request for a directed verdict on his counterclaim.

We find no merit in the appellant's contention that the court erred in overruling the plea in abatement. The undisputed evidence shows that the Gulf Refining Company shipped its products to the plaintiff on consignment, and that the plaintiff became solely responsible to the Gulf Refining Company therefor, and that the defendant made his purchases direct from the plaintiff. Further, the defendant admitted in his motion to require the plaintiff to permit the defendant to inspect the records of the plaintiff that 'the basis of this lawsuit is charges and credits growing out of his operation of a filling station in Indianola, Mississippi, for the period covered by this lawsuit and in which he bought from the plaintiff certain gasoline, oil, tires, tubes and allied products, and paid for same from time to time.' It is manifest to us from the evidence, therefore, and from the defendant's own admission that the Gulf Refining Company was not interested in the lawsuit and was not a necessary party thereto.

In passing upon the appellant's assignment that the court erred in overruling his motion for a continuance made just prior to entering upon the trial of the case, consideration should be given to the statutes governing actions on open account and the interpretation placed thereon by our decisions.

Section 1469, Mississippi Code of 1942, provides: 'There shall be annexed to or filed with the declaration in every case founded on 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 or filed * * *.'

Section 1754 of the Code of 1942 provides: '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 * * *.'

The meaning, purport and purpose of these two sections are well established under the prior decisions of this Court.

'The accounts contemplated by these two sections of the Code are itemized accounts. They must show the dates of purchase, the kind of goods, the quantity and the price.' Finck & Co. v. Brewer, 133 Miss. 9, 96 So. 402, 403.

'In an action on an open account, it is not sufficient to file with the declaration merely a statement of the amounts of invoices or bills rendered, but there must be a copy of the account sued on, showing the items which compose it.' Pipes v. Norton, 47 Miss. 61.

'The sole object of the statute is to dispense with proof of the original correctness of the account when sworn to, unless the defendant shall deny it by affidavit filed with his plea.' Reinhardt v. Carter, 49 Miss. 315; Bower v. Henshaw, 53 Miss. 345; Parker v. Thornton, 206 Miss. 662, 40 So.2d 538.

'The statute provided a rule of evidence, and not one of pleading and practice.' Gulf & S. I. R. Co. v. Kelly, 131 Miss. 133, 95 So. 131, 132, 97 So. 813; Sanders & Alexander, Inc., v. Jones, 221 Miss. 143, 72 So.2d 240.

In the case of Tichenor v. Woodburn Sarven Wheel Co., 54 Miss. 589, it was held that notwithstanding the fact that the itemized account supported by proper affidavit precludes the defendant in the absence of a proper affidavit from questioning the individual items of the account, the plaintiff is still required to prove liability on the account. In other words, as said by the Court in the Tichenor case, the relation of the defendant as debtor on the account must be proved in such case, 'but if he is shown to be debtor for any part of said account, he shall not be permitted under the general affidavit to question any of the items of the account.'

In the case of Gulf & S. I. R. Co. v. Kelly, supra, the Court held that the duly itemized account supported by proper affidavit gives to the account thus sworn to conclusive effect as evidence unless the defendant shall controvert its correctness by counter affidavit as provided in the statute; 'but said statute does not provide a rule of pleading and practice but a rule of evidence, and, where the defendant fails to file the affidavit provided by the statute, he is not cut off from making any and all defenses to plaintiff's action.'

In the case of Stockstill v. Gerson, Miss., 35 So.2d 60, the counter-affidavit filed by the defendant was very similar to the counter-affidavit filed by the defendant in the case at bar. In the Gerson case the defendant alleged in his counter-affidavit that 'he did not owe plaintiff * * * the amount sued for, or any part of it, because he did not order, buy or...