Sawyer & Austin Lumber Co. v. Champlin Lumber Co.
| Decision Date | 07 September 1905 |
| Citation | 84 P. 1093,16 Okla. 90,1905 OK 112 |
| Parties | SAWYER & AUSTIN LUMBER CO. v. CHAMPLIN LUMBER CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 10, 1906.
Syllabus by the Court.
A petition upon a verified account, which contains no allegation of the correctness of such account, is not sufficient to require the answer to be verified.
[Ed Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 886.]
An answer which does not question the correctness of a verified account as set forth in the petition, but which sets up an affirmative defense, is not required to be verified. It is only the correctness of a duly verified account that an unverified answer admits.
[Ed Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 880.]
Where the case-made does not contain a recital to the effect that the record contains all the evidence introduced on the trial of the cause, this court will not review any question which requires an examination of all the evidence in order for its correct determination.
[Ed Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2916, 2917.]
Error from District Court, Garfield County; before Justice J. L Pancoast.
Action by the Sawyer & Austin Lumber Company against the Champlin Lumber Company. Judgment for defendant, and plaintiff brings error. Affirmed.
On the 10th day of February, 1903, the Sawyer & Austin Lumber Company, a foreign corporation, commenced its action in the district court of Garfield county against the Champlin Lumber Company, a domestic corporation, to recover a balance of $1,293.92, claimed on account for lumber sold and delivered by the plaintiff to the defendant. A statement of the account sued on was attached to the petition, and to the account was attached an affidavit of the bookkeeper of the plaintiff corporation, the material averments of which are as follows: "That the invoices hereto attached show shipments of lumber and material, as therein set out, by said Sawyer & Austin Lumber Company to the said Champlin Lumber Company; that there is now due the said Sawyer & Austin Lumber Company from said Champlin Lumber Company, after allowing all just credits and set-offs, the sum of $1,293.92, as shown by the books and accounts of the said the Sawyer & Austin Lumber Company, as this affiant is informed and verily and truly believes." To the petition the defendant filed an answer setting up three defenses, consisting, first, of a general denial; second, noncompliance with the law regulating foreign corporations doing business in the territory; and, third, counterclaim for damages arising out of alleged failure to comply with the contract to deliver an additional order for lumber. The plaintiff demurred to the answer, which was overruled, and exceptions saved. The cause was tried to the court, and finding made and judgment rendered in favor of the plaintiff for the sum of $374.45, the difference between the sum sued for by plaintiff and the amount of damages allowed defendant on its cross-petition. The plaintiff appealed.
Moore & Moore, for plaintiff in error.
C. H. Parker, for defendant in error.
But two alleged errors are presented in the brief of plaintiff in error. It is first contended that the court erred in overruling the demurrer to the answer, for the reason that the petition was upon a verified account, and the answer, not being verified, was insufficient. Section 4312, Wilson's Rev. & Ann. St. 1903 (section 114, Code Civ. Proc.) provides: "In all actions, allegations *** of the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit...
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