Sullivan Timber Co. v. Brushagel , 111 Ala. 114 ( 1895 )

McCLELLAN, J.

Section 2773 of the Code is as follows : ‘‘ When sivorn account admissible in evidence. In all suits upon accounts, an itemized statement of the account, verified by the affidavit of a competent witness, taken before and certified by an officer having authority under the laws of this State to take and certify affidavits, is competent evidence of the correctness of the account, if the plaintiff, at the time of bringing his suit, indorses on the summons and complaint, or other original process, the fact that the account is verified by affidavit, unless the defendant, within the time allowed him for pleading, files in the cause an affidavit denying, on information and belief, the correctness of the account.” It is, of course, not in the purview of this statute that suit should be brought as upon a verified account, but only that, where a suit in the usual form of complaint is brought on an account, and the account is verified and filed, and these facts noted on the summons and complaint, the account, without further proof of its correctness, is competent evidence unless challenged by the affidavit of the defendant. One way of noting the fact of verification which has been approved by this court is to aver it in the complaint instead of indorsing thereon ; and when such averment is made it is to be taken merely as a compliance with the statute and not as descriptive of the cause of action. — Lunsford v. Butler, 102 Ala. 403. So that, where, as here, the complaint avers that the action is upon a verified account, it is open to the plaintiff either to prove the account sued on by adducing it as verified, or, if he fails to introduce — has not in fact filed — a verified account, he may prove the account sued on as if no averment of its verification had been made. It follows that the rulings of the court below in this case cannot be supported on the theory of a variance between the cause of action alleged and that attempted to be proved.

The present suit is, therefore, to be treated as a simple action on an account with the burden on tfie plaintiff corporation, since it did not produce, or rely upon as evidence, a verified account, to prove the correctness of its account by evidence aliunde.

To prove an account sued on as an open account it is not indispensably necessary to produce before the jury a written statement of the account or to establish the items of the account. It is quite sufficient if it be shown in a case like this that the defendant bought goods from the plaintiff, whether one or many items, and admitted the correctness of the charge made by the plaintiff against him for them, with knowledge of the facts ; or, in other words, a count as upon an open account, or upon an account simply, may be well supported by proof -of an account stated. — Johnson v. Kelly & Hutchinson, 2 Stew. 490; Holmes v. Gayle & Bower, 1 Ala. 517; Pryor v. Johnson, 32 Ala. 27. The evidence of Black in this case certainly went to show that Brushagel admitted the correctness of plaintiff’s account, and thus to sustain the action so far as a personal judgment against the defendant was sought, though the evidence of this'witness may not have otherwise tended to prove the account sued on. And plaintiff would be entitled to such a judgment if Brushagel was shown to owe the account though it might not be entitled to the enforcement thereof as a material-man’s lien against the-property of Brushagel described in the complaint. — Bedsole v. Peters, 79 Ala. 133. The circuit court, therefore, erred in excluding all the evidence of Black, and also in giving the affirmative charge for the defendant.

We need not consider the other points reserved in detail. We are of opinion that if it-be. shown on another trial that Brushagel owed plaintiff the account for lumber purchased by him to be used in the building of a house or. houses on the land described in the complaint, that the lumber was so used, that in ordering this lumber he specified in writing the several kinds and quantities of lumber he desired, as shown in the paper marked “Exhibit A” in the abstract, that upon this specification plaintiff 'set down a lump sum as the price of all the lumber and Brushagel bought the bill of lumber as thus stated, and that a copy of this order with this statement of price added to it was duly verified and within the statutory period filed in the office of the judge of probate along with the statutory declaration of lien claim, the plaintiff would be entitled to a personal judgment against Brushagel and also to a judgment condemning the property to sale in satisfaction thereof.

Reversed and remanded.