Wolff v. Hopkins

• Court: United States State Supreme Court of Mississippi
• Citation: 111 So. 290,145 Miss. 827
• Decision Date: 07 February 1927
• Docket Number: 26252
• Parties: WOLFF v. HOPKINS. [*]

111 So. 290

145 Miss. 827

WOLFF
v.
HOPKINS. ^[*]

No. 26252

Supreme Court of Mississippi

February 7, 1927

Division A

. (Division A.) [111 So. 290.]

1. CONTRACTS. Plaintiff in action on cost plus contract must allege and prove items of weekly pay rolls after defendant pleads general issue (Hemingway's Code, section 517).

[145 Miss. 828]

Under Hemingway's Code, section 517 (Code 1906, section 734), plaintiff in action to recover on cost plus contract for labor and material must allege and prove all items of weekly pay rolls for labor after defendant pleads general issue.

2. CONTRACTS. Dispute as to terms of contract raises issue for jury. Dispute as to terms of contract raises issue for submission to jury.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Action by F. Hopkins, Jr., against Ike Wolff. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Eugene Gerald and George Butler, for appellant.

It was error to permit appellee to testify to pay roll expenditures. Section 734, Code of 1906 (section 517, Hemingway's Code) provides in substance that there shall be annexed to or filed with the declaration in every case founded upon an open account, a copy of the account or a bill of particulars of the demand, and evidence thereof shall not be given on the trial unless so annexed or filed. See also section 1978, Code of 1906 (section 1638, Hemingway's Code); section 2106, Code of 1906 (section 1774, Hemingway's Code).

These statutes have been construed in a number of cases and held to be mandatory and it has consistently been held that in the absence of such an itemized statement no evidence was admissible as to the items when properly objected to. Pipes v. Norton, 47 Miss. 61; Levy v. Bank, 124 Miss. 325; Finch v. Brewer, 133 Miss. 9; Bank Book Depository v. Donald, 115 Miss. 465.

Ernest Kellner, Jr., and Thos. L. Bailey, for appellee.

Section 734, Code of 1906 (section 517, Hemingway's Code), cited by appellant, is applicable only to cases [145 Miss. 829] founded on an open account. The case at bar is not founded on an open account but is a suit for the recovery of the balance owing under an oral contract between the parties, the terms of which are admitted by appellant. This distinction between a suit founded on an open account under the statute and a suit on a contract has been clearly defined by this court in Baldwin v. Morgan, 73 Miss. 276, 18 So. 919.

It is not alleged or in evidence that the parties contracted that a record of the pay rolls should be kept; however, it is in evidence that appellee kept and submitted to appellant a proper record of the pay rolls shown in the statement thereof attached to the declaration, and appelland admits that the pay rolls were given to him, and that he paid for the labor week by week. Certainly, appellant, admitting that the pay rolls were given to him as he paid them, will not be allowed to exclude appellee's evidence that the money represented by the pay rolls was expended under the contract because appellee fails to produce the pay rolls.

Section 1778, Code of 1906 (section 1638, Hemingway's Code) cited by appellant, is simply a rule of evidence in suits founded on an open account of which a party may avail himself if he chooses and has no application to the case at bar. The failure of a person to avail himself of this statute does not exclude proof of the account sued upon, but makes it necessary to prove the account.

Section 2106, Code of 1906 (section 1174, Hemingway's Code), is also a rule of evidence as to how a claim shall be proved against a decedent and has no application to the case at bar.

The...