Opinion
No. 27901.
May 6, 1929.
1. ACCOUNT, ACTION ON. In action on itemized sworn account in which defendant filed counter-affidavit, plaintiff had burden of proof to establish correctness of items of account.
In action on itemized sworn account in which defendant filed a counter-affidavit denying items of account, burden of proof was on plaintiff to establish correctness of items of account.
2. EVIDENCE. Evidence that defendant had admitted to witness correctness of account and promised to pay it held admissible.
In action on sworn account, testimony of collector of claims that defendant admitted to him the correctness of items of account and promised to pay it at some future time held admissible as admission against interest, since such evidence did not come within rule against hearsay evidence.
3. ACCOUNT, ACTION ON. In action on itemized sworn account, question of correctness of account held for jury.
In action on itemized sworn account in which defendant filed counter-affidavit denying items of account, question of correctness of items of account held for jury.
APPEAL from circuit court of Coahoma county, Second district, HON. W.A. ALCORN, JR., Judge.
J.H. O'Neal, for appellant.
Adams Adams, for appellee.
This action was brought by appellee against appellant on an itemized sworn account. There was a verdict and judgment in the circuit court of Coahoma county for appellee, from which judgment the appellant prosecutes this appeal.
The appellant filed a counter-affidavit to the itemized sworn account sued on denying the items of the account.
The itemized sworn account and the counter-affidavit made up an issue for the jury. The burden of proof was on the appellee to establish the correctness of the items of his account. To meet the burden, appellee introduced as a witness one Graham, a collector of claims, who testified that appellee put the account sued on in his hands for collection; that he demanded of appellant payment of the account, and appellant admitted the correctness of the items of the account and promised to pay it at some future time. The appellant testified as a witness in his own behalf, denying the correctness of the account and that he had admitted its correctness to Graham and promised to pay it. Graham's evidence was admitted over the objection of appellant.
The appellant argues that the action of the court in that respect was error; that Graham's evidence came within the hearsay rule and should have been excluded on that ground.
Admissions against interest of a party to a cause do not come within the rule against hearsay evidence. Evidence of such admissions, made out of court, where material to the issues being tried, is always admissible against the party making them; they are not condemned by the rule of hearsay evidence. Clark v. Perry, 4 How. 285; Parr v. Gibbons, 23 Miss. 92; Id., 27 Miss. 375; Levy v. Holberg, 71 Miss. 66, 14 So. 537; and Neblett v. Neblett, 70 Miss. 572, 12 So. 598. Graham's evidence made an issue for the jury, and if believed by the jury, as it was, authorized the verdict for the appellee.
Affirmed.