Westinghouse Credit Corp. v. Moore & McCalib, Inc., No. 50499

• Decision Date: 16 August 1978
• Docket Number: No. 50499
• Citation: 361 So.2d 990
• Parties: WESTINGHOUSE CREDIT CORPORATION v. MOORE & McCALIB, INC., et al.
• Court: Mississippi Supreme Court

Page 990

361 So.2d 990

WESTINGHOUSE CREDIT CORPORATION v. MOORE & McCALIB, INC., et al.

No. 50499.

Supreme Court of Mississippi.

Aug. 16, 1978.

Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., Jackson, for appellant.

Parker, Averill, Funderburk & Butts, Roy O. Parker, David O. Butts, Jr., Tupelo, for appellees.

Before SMITH, P.J., and BROOM and LEE, JJ.

BROOM, Justice, for the Court:

"Floor planning" (financing) of mobile homes led to this suit by Westinghouse Credit Corporation (Westinghouse herein) against appellees, Moore & McCalib, Inc. (M & M herein), Lee Moore, James R. Moore and Charles E. Simmons (defendants and counterclaimants). Trial in the Circuit Court of Lee County resulted in a directed verdict in favor of all the defendants on Westinghouse's suit, and a directed verdict in their favor on their counterclaim against Westinghouse (appellant) in the sum of $4,938.15. We reverse.

M & M is a sales outlet firm offering mobile home dwelling units to the general public. The two Moores and Mr. Simmons (officers of M & M) are defendants to the Westinghouse suit, along with M & M. Westinghouse's declaration alleged that on May 11, 1972, M & M and its officers entered into an agreement with Westinghouse whereby upon their request and at Westinghouse's option, Westinghouse would advance funds to enable M & M to purchase the homes for resale. On October 6, 1972, a similar agreement was also executed between Westinghouse and the individual defendants. Under this typical floor planning agreement, Westinghouse took a "floating" security interest in M & M's inventory of mobile homes and, as a home was sold, M & M was to pay Westinghouse the amount due on that unit. Repayment on all advances was due in ninety days unless the terms were extended by Westinghouse. Westinghouse filed a suit alleging that M & M and its officers were indebted to Westinghouse in the amount of $6,908.42; copies of the two agreements were attached to the declaration. M & M and its officers answered (denying any debt to Westinghouse) and counterclaimed for $4,938.15, which they alleged was the amount due for repossessing five mobile homes for Westinghouse pursuant to the agreement between the parties. Westinghouse argues that (1) the lower court erroneously directed a verdict against it on its suit, and (2) the court erred in granting the directed verdict in favor of M & M as to the counterclaim against Westinghouse.

At the trial, Westinghouse introduced the U.C.C. agreements signed by M & M and by the three individual defendants. ¹ Then Westinghouse attempted to introduce an inventory billing statement to which M & M successfully objected, pointing out that it was not attached to the declaration as required on an open account suit. M & M asserted (and now argues) that Mississippi Code Ann. Sec. 11-7-47 (1972) and Sec. 11-7-45 (1972) precluded admission of the billing statement into evidence. Westinghouse then attempted to introduce oral testimony as to the amount due, but M & M successfully objected on the basis of the best evidence rule and that the answer called for a legal conclusion. In that situation, Westinghouse rested and the court granted a directed verdict in favor of M & M, after which the trial proceeded on the counterclaim.

WAS THE SUIT OF WESTINGHOUSE UPON AN OPEN ACCOUNT, REQUIRING THAT THE INVENTORY BILLING STATEMENTS BE ATTACHED TO THE DECLARATION IN ORDER TO BE ADMISSIBLE INTO EVIDENCE? The question is critical as to Westinghouse's suit because it attempted to prove the amount of its claim by introducing inventory billing statements which were not filed with or attached to the pleadings. M & M objected to Westinghouse placing into evidence the inventory billing statements and relied upon Mississippi Code Ann. Sec. 11-7-45, supra, which provides that in open account suits there shall be annexed to or filed with the declaration "a copy of the account or bill of particulars...." Sec. 11-7-47, supra, provides:

A copy of any writing of which profert is made, or ought to be made ... shall be annexed to or filed with the pleading ... and evidence thereof shall not be given at the trial unless so annexed or filed....

"Open account" has been given various definitions, but it is generally held to mean an account based on continuing transactions between the parties which have not been closed or settled but are kept open in anticipation of further transactions. We hold that the declaration of Westinghouse before us did not present a suit based upon an open account. Scrutiny of the declaration indicates that it is a suit sounding in contract, and although the declaration should have stated the amount of Westinghouse's claim with greater particularization, there was not filed by M & M any demurrer, request for discovery, motion for bill of particulars, or other challenge. Mississippi Code Ann. Sec. 11-7-35 (1972) provides that a declaration shall state the cause of action in ordinary and concise language and shall be sufficient if it contains "sufficient matter of substance for the court to proceed...." Clearly, the declaration of Westinghouse complied with Sec. 11-7-35, and was based upon two written contracts, the execution of which was not denied. Oral argument of M & M noted that the charge of "breach of contract" does not appear in the declaration. Nevertheless, we hold that no magic words such as "breach" are necessary where, as here, the allegations in simple language state a cause of action as required by Sec. 11-7-35.

Barron v. Murdock Accept. Corp., 240 Miss. 521, 127 So.2d 878 (1961), held that the suit there which arose from a "floor-planning" financing method similar to the one in this case was a suit based on contract rather than open account. Barron stated:

[T]he suit was one for balances allegedly due on certain written contractual obligations which were filed as exhibits to the bill of complaint. (Sec. 1754, Code of 1942, is now Sec. 13-1-141 Miss.Code Ann. (1972)).

Upon the...