W. M. Finck & Co. v. Brewer, 23003

• Court: United States State Supreme Court of Mississippi
• Citation: 96 So. 402,133 Miss. 9
• Docket Number: 23003
• Parties: W. M. FINCK & CO. v. BREWER et al
• Decision Date: 21 May 1923

96 So. 402

133 Miss. 9

W. M. FINCK & CO.
v.
BREWER et al

No. 23003

Supreme Court of Mississippi

May 21, 1923

Division B

(Division B.) January 1, 1920

1. ACCOUNT, ACTION ON. Elements of open account, sufficient to sustain suit, stated; "account."

In a suit upon an open account, where this account is attached to the declaration as provided by section 517, Hemingway's Code (section 734, Code 1906), and where the account is sworn to in accordance with section 1638, Hemingway's Code (section 1978, Code 1906), this account must be an itemized account. It must show the dates of purchase, the kind of goods, the quantity, and the price, otherwise neither of these statutes is complied with.

2. CORPORATIONS. Treasurer may make oath to open account within statute.

The treasurer of a corporation is such an agent as may make oath to an open account, as provided by section 731, Hemingway's Code (section 1011, Code 1906), which provides for the oath or affirmation by an agent or attorney.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Action by W. M. Finck & Co. against Earl Brewer and John Cleary. Judgment for defendants, and plaintiff appeals. Affirmed.

Affirmed.

Maynard, Fitzgerald, & Venable, for appellant.

It is so palpably plain that this case should not have been taken from the jury by the judge that after going over the record we cannot find a single reason upon which such action of the court could be founded. The question of whether or not the goods were ordered by the firm of Brewer & Cleary is completely settled by Mr. Cleary's acknowledgment and identification of the different orders for the goods as charged on the itemized bill. That [133 Miss. 10] the goods were received by the firm of Brewer & Cleary is absolutely established both by the original bills of lading, which were wrongfully excluded by the court, and by the testimony of the agent at Jonestown, Mississippi, who swore to the signature of J. L. Leonard, driver or porter for Brewer & Cleary.

In our opinion the sworn, itemized statement of the account of W. M. Finck & Company was not necessary: first, because it was not denied by counter affidavit specifying wherein the same was incorrect as required by the statute; second, because it was admitted by Cleary; third, because the receipt of goods was proven by Watts, freight agent. But as this question will come up before this court a number of times, we have no doubt, and because we can find no authority in the state of Mississippi which has absolutely settled the point, we here cite authorities and reasoning going to show that the treasurer of a corporation is the proper person and the authorized agent of the corporation to make such affidavit. In the first place, the treasurer of a corporation has complete charge of its books and accounts and is, under ordinary custom of business, the one who pays out and receives moneys and investigates the accounts of the concern. He is a general officer of all corporations. He is one of the general officers of the corporation and where he makes the affidavit as was done in this case of his own knowledge that the account is just, correct, and due, certainly there could be no objection to the account because he did not state himself that he was authorized to make the affidavit. The fact is this is unnecessary under the decisions of this court where in numerous instances, while the exact point was not raised, this court has passed upon and approved sworn accounts made by the treasurer and secretary of corporations. The following cases from other states have directly passed upon the propositions, to-wit: ALABAMA--Birmingham Realty Co. v. Barron (1907), 150 Ala. 232, 43 So. 346; CALIFORNIA--Old Settlers Invest. Co. v. White (1910), 158 Cal. 236, 110 P. 922; [133 Miss. 11] DISTRICT OF COLUMBIA--International Seal Co. v. Beyer (1909), 33 App. D. C. 172; INDIANA--Fremont Cultivator Co. v. Fulton (1885), 103 Ind. 393, 3 N.E. 135; MAINE--Casavant & Co. v. Smith (1906), 115 Me. 168, 98 A. 577; MICHIGAN--Forbes Lithograph Mfg. Co. v. Winter (1895), 107 Mich. 116, 64 N.W. 1053; MISSOURI--Remington Sewing Machine Co. v. Cushen (1880), 8 Mo.App. 528; White Sewing Machine Co. v. Betting (1893), 53 Mo.App. 260; NEBRASKA--Moline M. & S. Co. v. Curtis (1893), 38 Neb. 520,...