Opinion
No. 41329.
January 18, 1960.
1. Interest — in absence of a contract or demand for interest — no interest was due on open account.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Copiah County; TOM P. BRADY, Judge.
W.M. Broome, Crystal Springs, for appellant.
I. The striking of appellant's answer and the entry of judgment for appellee by the lower court was contrary to law.
II. The lower court erred in not allowing the appellant to go to trial on the issues raised by his answer.
III. The lower court erred in overruling appellant's motion to set aside the judgment, striking the answer of appellant and entering judgment for appellee.
IV. Collation of authorities: Aaron v. Podesta, 60 Miss. 82; Bailey Rhodes v. John Henry Co., 1 Miss. Dec. 565; Delta Motors, Inc. v. Childs, 233 Miss. 125, 101 So.2d 527; Goshen Shirt Mfg. Co. v. Tonkel, 123 Miss. 659, 86 So. 453; Griffith v. Goodin, 202 Miss. 548, 32 So.2d 743; Gulf Ship Island R. Co. v. Kelly (Miss.), 95 So. 131; Gwin v. Fountain, 159 Miss. 619, 127 So. 18; Parker v. Thornton, 206 Miss. 662, 40 So.2d 538; Philley v. Toler, 231 Miss. 512, 95 So.2d 783; Reinhardt v. Carter, 49 Miss. 315; Richter Mfg. Co. v. Vicksburg Candy Co., 127 Miss. 717, 90 So. 445; Sanders Alexander, Inc. v. Jones, 221 Miss. 143, 72 So.2d 240; Stockstill v. Gerson, 203 Miss. 316, 35 So.2d 60; Tichenor v. Woodburn Sarven Wheel Co., 54 Miss. 589; Sec. 1754, Code 1942.
Henley, Jones Henley, Hazlehurst, for appellee.
I. The Court below was correct in sustaining the motion to strike the defendant's answer.
A. Defendant wholly failed and refused to comply with the mandatory provisions of the Mississippi statute pertaining to pleading. Christopher v. Brown, 211 Miss. 322, 51 So.2d 579; City of Halehurst v. Mayes, 96 Miss. 656, 51 So. 890; Home Insurance Co. v. Watts, 229 Miss. 735, 91 So.2d 722; Metcalfe v. Wise, 159 Miss. 541, 132 So. 102; Morris v. City of Columbia, 184 Miss. 342, 186 So. 292; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Smith v. Federal Land Bank, 178 Miss. 600, 173 So. 673; Secs. 1291, 1475.5-2(a), Code 1942; Griffith's Mississippi Chancery Practice, Secs. 348, 353.
B. Allegations in answer were so indefinite or uncertain that the precise nature of the defense was not apparent. Bouvier's Law Dictionary, definition of "certainty". Webster's Dictionary, definition of "indefinite", "precise", "uncertainty".
C. Answer was so framed as to prejudice, embarrass and delay a fair trial.
D. The answer was not sufficient to state a valid defense. Aaron v. Podesta, 60 Miss. 82; Britton v. Magnolia State Casket Supply Co., 210 Miss. 264, 49 So.2d 404; Delta Motors, Inc. v. Childs, 233 Miss. 125, 101 So.2d 527; Garrett v. Pigford, 218 Miss. 840, 67 So.2d 885; Goshen Shirt Mfg. Co. v. Tonkel, 123 Miss. 659, 86 So. 453; Griffith v. Goodin, 202 Miss. 548, 32 So.2d 743; Gulf Ship Island R. Co. v. Kelly (Miss.), 95 So. 131; Gwin v. Fountain, 159 Miss. 619, 126 So. 18; Hannan Motor Co. v. Darr, 212 Miss. 870, 56 So.2d 64; Home Insurance Co. v. Watts, 229 Miss. 735, 91 So.2d 722, 93 So.2d 848; Metcalfe v. Wise, 159 Miss. 54, 132 So. 102; Parker v. Thornton, 206 Miss. 662, 40 So.2d 538; Philley v. Toler, 231 Miss. 512, 95 So.2d 783; Reinhardt v. Carter, 49 Miss. 315; Richter Mfg. Co. v. Vicksburg Candy Co., 127 Miss. 717, 90 So. 445; Sanders Alexander, Inc. v. Jones, 221 Miss. 143, 72 So.2d 240; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Sivley v. Williamson, 112 Miss. 206, 72 So. 1008; Smith v. Federal Land Bank, 178 Miss. 600, 173 So. 673; Spiegel, Inc. v. Fashion Play Togs, 83 N.Y.S.2d 762; Stewart v. Budd, 7 Mont. 573, 19 P. 221; Stockstill v. Gerson, 203 Miss. 316, 35 So.2d 60; Virkshus v. Virkshus, 250 Wis. 90, 26 N.W.2d 156.
II. The Court did not err in entering default judgment in this case. State v. Brown, 34 Miss. 688; Strain v. Gayden, 197 Miss. 353, 20 So.2d 697.
III. The Court below did not err in overruling the defendant's motion to set aside the judgment. Alexander v. Hyland, 208 Miss. 890, 45 So.2d 739; Archer v. Stamps, 4 Sm. M. (12 Miss.) 352; Britton v. Magnolia State Casket Supply Co., supra; Chilcutt v. Keating, 220 Miss. 545, 71 So.2d 472; Cuddahy v. Gragg, 46 Cal.App. 578, 189 P. 721; Denkman Lumber Co. v. Morgan, 219 Miss. 692, 69 So.2d 802; Dyett v. Harney, 53 Colo. 381, 127 P. 226; Farmer v. Fowler, 213 Ill. App. 581, 288 Ill. 494, 123 N.E. 550; Flynn v. Kurn, 183 Miss. 413, 184 So. 160; F.B. Walker Sons, Inc. v. Rose, 78 So.2d 592; Illinois Cent. R. Co. v. Brown, 149 Miss. 42, 115 So. 115; Gwin v. Fountain, supra; King v. Ransburg, 111 Ind. App. 523, 39 N.E.2d 822; 40 N.E.2d 999; Lamar Hardwood Co. v. Case, 143 Miss. 277, 107 So. 868; Lester v. Johnson, 137 Ala. 194, 33 So. 880; McMullin v. Magnuson, 102 Colo. 230, 78 P.2d 964; Marx v. Miller, 134 Ala. 347, 32 So. 765; Matheny v. Illinois Cent. R. Co., 235 Miss. 173, 108 So.2d 589; Mazer v. Brown, 66 So.2d 561; Munger v. Beiderwell, 155 Kan. 187, 124 P.2d 452; Nelson v. Schippel, 143 Kan. 546, 56 P.2d 469; Pattison v. Josselyn, 43 Miss. 373; Planters Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440; Planters' Oil Mill v. Yazoo M.V.R. Co., 153 Miss. 712, 121 So. 138; Reedy v. Johnson's Estate, 200 Miss. 205, 26 So.2d 685; St. Louis-San Francisco R. Co. v. Dyson, 207 Miss. 639, 43 So.2d 95; Southern Beverage Co. v. Barbarin, 219 Miss. 493, 69 So.2d 395; State Farm Mutual Auto. Ins. Co. v. McKay, 209 Miss. 706, 48 So.2d 349; Wineman v. Clover Farms Dairy, 168 Miss. 583, 151 So. 749; Sec. 147, Constitution 1890; Sec. 1664, Code 1942; Rule 10, Chancery Court Rules; Rule 29, Circuit Court Rules; 1 Mississippi Law Journal 391.
In principle this case is controlled by C.D. Mathis v. Great Southern Wirebound Box Company, No. 41,324, decided on January 11, 1960, but there is one additional matter which is not decided in No. 41,324.
(Hn 1) In the instant case Olin Mathieson Chemical Corporation filed suit on an open account against Mathis in the amount of $3,883.57. The plaintiff in this case did not sue for or ask for any interest on the principal sum due but the lower court entered a judgment against Mathis in the amount of $4,693.79. In other words the lower court entered a judgment for not only the principal due but for several hundred dollars interest. The point was raised in the lower court, and is raised here, that no interest is due on the account because there was no contract for interest and no demand for interest. We think that the lower court was in error in awarding interest on the principal sum due and the judgment will therefore be amended so as to reduce the recovery from $4,693.79 to $3,883.57, and the cause will be affirmed as thus amended.
Affirmed as amended.
Roberds, Arrington, Ethridge and Gillespie, JJ., concur.