Goshen Shirt Mfg. Co. v. Tonkel , 123 Miss. 659 ( 1920 )

W. EL Cook, J.,

delivered the opinion of the court.

The appellant, Goshen Shirt Manufacturing Company, brought suit against M. Tonkel, appellee, on an itemized account, verified by affidavit of its correctness in accordance with the provisions of section 1978, Code of 1906 (section 1638, Hemingway’s Code). Appellee filed a counter-affidavit, challenging the correctness of one item of the account sued on, and averring that he did not owe said sum, or any part thereof. Upon the trial of the cause appellant introduced the sworn account and the deposition of one witness, and rested its case. Thereupon appellee moved the court to exclude the evidence and direct a verdict for defendants as to the contested item. This motion was sustained, and there was a verdict and judgment for1 plaintiff for the remaining items of the account, and plaintiff appealed.

Counsel for appellant contends that the counter-affidavit filed by appellee does not sufficiently particularize wherein the account is incorrect, and therefore, while conceding that the deposition offered in evidence is insufficient to , prove the disputed item, they insist that this deficiency in proof is supplied by the sworn account introduced in evidence.

Under section 1978, Code of 1906 (section 1638, Hemingway’s Code), the affidavit to the account sued on relieves the plaintiff of the necessity of proving the correctness of the items of the account, and entitles him to judgment, unless the defendant “make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct.” The counter-affidavit filed in this case Avas 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. Tlie counter-affidavit offset the original affidaAdt 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 is peremptorily instructing the jury to find for the defendant as to this item Avas correct.

Affirmed.