Summary
In Fatherree v. Griffin, 153 Miss. 570, 121 So. 119, the court laid down the principle that it is a general rule of practice in all courts that as to amendable defects or omissions in the pleadings and proceedings, there is a waiver unless in some appropriate form objections be taken in time for the amendment to be made.
Summary of this case from Carmichael v. J. Cahn Co.Opinion
No. 27560.
March 18, 1929.
1. APPEAL AND ERROR. Plaintiffs, suing on open account by proceeding as if counter-affidavit was sufficient, waived objection thereto ( Code 1906, section 1978).
Where plaintiffs, using on open account, proceeded in trial court as if counter-affidavit was sufficient, there was a waiver of any failure to comply with Code 1906, section 1978, because of not particularizing wherein sworn account was not correct.
2. PLEADING. Amendable defects or omisions are waived, unless objection is taken in time for amendment.
Unless objection in some appropriate form is taken to amendable defects or omissions in pleadings and proceedings in time for amendment to be made, there is a waiver thereof.
3. EVIDENCE. Testimony as to itemized account, made from records admitted to be in existence and available, was incompetent as not best-evidence.
Testimony as to itemized account made up from original records, admitted to be in existence and available, was incompetent, in that the best evidence thereof was the books themselves.
4. TRIAL. Deductions and inferences, to defeat peremptory instruction, must have basis in competent evidence.
Deductions and inferences, in order to preclude peremptory instruction, must have basis in competent evidence.
APPEAL from circuit court of Clarke county, HON. B.F. CAMERON, Special Judge.
Hal F. Case, J.D. Fatheree and J.L. Adams, for appellants.
Appellants contend that the counter-affidavit does not particularize wherein the account is incorrect, as contemplated by sec. 1710, Hem. Code 1927, and is insufficient to put plaintiffs in the lower court to the proof of the items on the account, leaving it only under the duty to prove defendant's liability therefor. This is true because this section of the code makes it unnecessary to prove the particular items of the account unless the defendant "makes affidavit and files with his plea that the account is not correct particularizing wherein it is not correct." Richter Mfg. Co. v. Vicksburg Candy Co., 127 Miss. 717, 90 So. 445; Goshen Shift Co. v. Tonkel, 123 Miss. 659, 86 So. 453; Tichenor v. Woodburn, 54 Miss. 589.
If the court should hold that the counter-affidavit is sufficient to put the plaintiff on proof of each and every item we submit, that the plaintiffs have met this burden to the degree at least that the trial judge was not warranted in refusing to allow the case to go to the jury. It should be noted that all of his testimony in regard to the amount of footage on each item and price per thousand, plaintiff Fatherree was able to give without the assistance of the account or any memorandum, each item of the account independent of the itemized account filed by plaintiffs. It is true that on cross-examination plaintiff was led to make a statement that he was not testifying from memory, but from the account. However, there is no doubt but that the witness had in mind at that time, judging from the context of the testimony, that he was not able to give from memory the dimensions and footage of each piece of lumber. Both the direct and cross-examination of this witness are brimming full of testimony of independent recollection as to the amount of footage, grade and quality of each lot of lumber charged in the bill of particulars. To say the least as to the evidence establishing each item of plaintiffs account it is certain that it is merely conflicting in this respect and our courts have uniformly held that where the evidence as to the issues in the suit is conflicting it is error to grant a peremptory instruction. Bernard Mfg. Co. v. Baird, 141 Miss. 110, 106 So. 82. It has been held by our courts in determining whether or not the verdict should have been directed that if the evidence merely tends to establish the allegations of the declaration that the case should go to the jury. Yates v. Houston Murry, 141 Miss. 881, 106 So. 110; St. Louis, etc., R.R. Co. v. Nixon Phillips, 146 Miss. 677, 105 So. 478; N.O., etc., R.R. Co. v. Martin, 140 Miss. 410, 105 So. 864.
Stevens Heidelberg and D.W. Heidelberg, for appellee.
The substance of appellants' argument with reference to the alleged insufficiency of the counter-affidavit, it seems to us, is that it is insufficient, not because it did not point out the particular items of the account which the defendant denied as being correct, but because the defendant did not specify the reasons why these items were not correct. This same argument was made in Goshen Shirt Mfg. Co. v. Tonkel, 123 Miss. 659, 86 So. 453, in which the court said: "The counter-affidavit filed in this case was a sufficient compliance with the statutory requirements, and the filing of this affidavit placed upon the plaintiff the burden of proving the correctness of the disputed item. The counter-affidavit offset the original affidavit as evidence, and since plaintiff's deposition failed to supply the proof necessary to entitle it to recover for the contested item, the action of the court in peremptorily instructing the jury to find for the defendant as to this item was correct." The only difference between the counter-affidavit in the case referred to and the case at bar is that in that case the defendant's counter-affidavit denied the correctness of only one item of the account, whereas in the case at bar the counter-affidavit denied the correctness of "each and every item on both said accounts, shown as charges against this defendant."
Counsel for appellants cite a good many authorities to the effect that where the evidence is conflicting and there is any evidence in the record to sustain the issue, then it must be passed upon by the jury and not decided by the court as a matter of law. This is not a case of conflicting evidence, but is simply a case where there was no competent evidence at all. Where a party cannot prove the correctness of an account by independent recollection and knowledge of its correctness and has to rely upon books or records of the account, the only competent evidence which can be introduced is the original books and records, and even these cannot be introduced, unless and until it has been proven that they are the books of original entries, etc. Moody v. Roberts, 41 Miss. 75; Pipes v. Norton, 47 Miss. 61; Dyson v. Baker, 54 Miss. 24.
A case almost identical with the one at bar is that of Hoye v. Newton Lumber Mfg. Co., 99 Miss. 229, 54 So. 839, where in the lower court the plaintiff had sued the defendant on a sworn, itemized statement of account for lumber sold him and attempted to prove the correctness of the account by having the manager of the plaintiff take the stand and testify to the correctness of the items shown on the account, but who admitted that he did not know of his own knowledge that they were correct, but that he did know that the account was a copy from the books, and that he knew it was correct, because he knew the books were correct, and that he had compared the copy with the original account on the books. The court said: "The testimony of Brown as to what the books showed was clearly incompetent in this case, and should have been excluded. The best evidence was the books, and they should have been produced." Attorneys for appellant insist that there was a conflict in the evidence, and that where there is such conflict the jury has a right to pass on the case. We admit that if there had been some competent evidence which if true, the plaintiff would be entitled to judgment that a peremptory instruction would have been improper. But what competent evidence was there that showed or even tended to show that the defendant was indebted to the plaintiffs in any sum? Not Fatherree's because he testified repeatedly that he had no personal recollection of the items, and that all he knew was that the items were taken from a book of original entries, in his possession or under his control which he refused to produce. No other witness except himself, not even his co-plaintiff, attempted to prove the correctness of the account. No witness except himself swore that the defendant owed the plaintiffs anything, and his knowledge he admitted, was based on records, either in existence or not shown to be lost, and for which no search was made, which were in his possession and which he refused to offer in evidence.
Appellants sued appellee on an open account for lumber sold and delivered; the deliveries covering a period of some five or six months. The sworn account exhibited with the declaration was not sufficiently itemized, and, on motion, a bill of particulars was ordered and was filed. To this sworn bill of particulars the defendant filed his counter-affidavit, the material part of the language of which is as follows: "That each and every item on both of said accounts shown as charges against this defendant are incorrect."
The counter-affidavit does not particularize wherein the sworn account is not correct, and appellants contend that it is therefore not a compliance with section 1978, Code 1906, and that for that reason they were entitled to judgment. Conceding, but not deciding, that the point would have been well taken, it was not made in the trial court. On the contrary, appellants proceeded in the trial court as if the counter-affidavit were sufficient. It is settled by the cases Bloom v. McGrath Compton, 53 Miss. at page 256, and Covel v. Smith, 68 Miss. at page 297, 8 So. 850, that it is too late after trial or after having practically completed the trial to raise this question, even where there is no counter-affidavit at all. It is a general rule of practice in all courts that, as to amendable defects or omissions in the pleadings and proceedings, there is a waiver, unless, in some appropriate form, objection be taken in time for the amendment to be made.
Several witnesses were introduced by appellants to sustain the affirmative of the issues, but, with one exception, none of them knew more in substantial accuracy than the fact that, at divers times, lumber had been delivered, but as to how much lumber or how much paid, they could give no definite data. The other witness, Mr. Fatherree, did know definitely about the two largest items in the account, but as to those there were admitted credits exceeding them in amount. As to all, or practically all, the remaining items, Mr. Fatherree candidly admitted that, apart from the itemized account, he had no dependable recollection concerning them, but asserted that he was justified in testifying that the said remaining items were correct because he had assisted in making up the itemized account from the original records. Counsel for appellee objected to this testimony, and continued to object and to call for the original records, which records, although admitted to be in existence and available, were never produced. We have a case therefore exactly in point with Hoye v. Lbr. Co., 99 Miss. 229, 54 So. 839, wherein there was involved a sworn itemized account for lumber sold, and the plaintiff's manager, without producing the books, testified that the account was copied from the books, and that he knew it was correct, because he had compared them. The court said: "The testimony of Brown as to what the books showed was clearly incompetent in this case. . . . The best evidence was the books, and they should have been produced."
Appellants argue however, that the testimony "tended to prove" the issues, and that therefore a peremptory instruction was improper. The use of the term "tends to prove" does not contemplate or recognize conjecture. When testimony is being offered and is being justified on the ground that it tends to prove the particular ultimate fact in issue, it must be evidence which proximately relates to that fact and has a logical and reasonable tendency to prove it, or which naturally progresses or moves in the direction of proving the said ultimate particular fact. And, when the taking of testimony is finished, then what is meant to be included by the phrase "tends to prove" are those logical deductions and reasonable inferences to be drawn from the relevant facts proved, which deductions and inferences, when allowed their full permissible operation, lead to, and establish, the particular ultimate fact in issue. But manifestly these deductions and inferences must have a basis in competent evidence, else there would be allowed to stand that which has nothing whereon to stand.
Affirmed.