Ruffin v. J. & M. Schwabacher, Limited
| Decision Date | 03 February 1930 |
| Docket Number | 28335 |
| Citation | 156 Miss. 326,126 So. 14 |
| Parties | RUFFIN v. J. & M. SCHWABACHER, LIMITED |
| Court | Mississippi Supreme Court |
1. APPEAL. AND ERROR. Defendant cannot complain of introduction of evidence in support of account where he admitted, on stand, correctness of account.
Defendant could not complain on appeal regarding introduction of evidence in support of account sued on where he, later in trial, took witness stand, and, testifying in his own behalf admitted correctness of account sued on.
2. APPEAL AND ERROR. Admission of incompetent evidence is not available as error on appeal when appellant introduces evidence establishing facts shown thereby.
Admission of incompetent evidence is not available as error on appeal when appellant on his own behalf introduces evidence which admits, confesses, or otherwise sufficiently establishes facts sought to be established by incompetent evidence.
3. APPEAL AND ERRORS. Where there is substantial testimony supporting jury's findings, it will be presumed verdict was based on that testimony.
Where there is substantial testimony on record which supports finding of jury, it will be presumed that verdict was based on that testimony, with consequences implied by that theory not on other testimony or some suppositional phase thereof which would be wholly insufficient.
4. TRIAL. In action on account, wherein defendant admitted correctness but claimed credit was due him, and jury returned verdict for plaintiff not specifying amount, court properly entered judgment for amount sued for.
In action on account, in which defendant admitted correctness of account sued on and amount thereof, but claimed as his defense that he was entitled to credit of more than enough to balance account, and jury returned verdict for plaintiff but did not fix amount, court properly entered judgment for plaintiff for amount sued for.
APPEAL from circuit court of Perry county HON. E. C. BARLOW, Special Judge.
Action by J. & M. Schwabacher, Limited, against J. F. Ruffin, Sr. From a judgment for plaintiff, defendant appeals. Affirmed.
Judgment affirmed.
H. D. Young, of New Augusta, and Stevens & Heidelberg, of Hattiesburg, for appellant.
The objections to introduction of the account and the testimony of the witness Libano were well taken, because the account as originally filed and as amended was not itemized, as required by section 531, Hemingway's Code 1927 (section 734, Code 1906).
Columbus & Greenville Railway Co. v. Mississippi Clinic, 120 So. 203, and Pipes v. Norton, 47 Miss. 61.
The lower court erred in concluding that the jury had meant to return a verdict for the full amount sued for.
C. C. Smith, of Richton, for appellee.
The court did not err in permitting appellee to amend the itemized account.
Southern School Book Depository v. Donald, 115 Miss. 465, 76 So. 519; Bloom v. McGrath, 53 Miss. 249; Sec. 775 of the Code of 1906.
The verdict of the jury could not have been for any other amount than the amount sued for because defendant admitted the indebtedness claimed by plaintiff.
It may be conceded, although not here decided, that the account sued on was not properly itemized and that the evidence in support thereof introduced by appellee was improperly admitted nevertheless the assignment of error addressed to that point is not well taken, for the reason that appellant later in the trial took the witness stand and, testifying in his own behalf, admitted the correctness of the account sued on, as a fair construction of his testimony will disclose. The effect of his testimony was that he admitted the account sued on and the correctness of the amount thereof, but denied that he owed the same or any part thereof, because as he testified he was entitled to a credit of an item not credited, and which credit if given would more than discharge the amount claimed against him. The admission of incompetent evidence is not available as error on appeal when appellant on his own...
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...this Court has added a sum to the verdict of the jury, and a review of these cases may be helpful. In the case of Ruffin v. J. & M. Schwabacher, Ltd., 156 Miss. 326, 126 So. 14, the jury returned a verdict in favor of plaintiff on a suit on an open account. Defendant did not deny the correc......
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