Richter Mfg. Co. v. Vicksburg Candy Co. , 127 Miss. 717 ( 1921 )

Cook, J.,

delivered the opinion of the court.

The Richter Manufácturing Company instituted suit in the circuit court against the Vicksburg Candy Company. At tbe conclusion of all tbe evidence tbe defendant’s motion for a peremptory instruction was sustained, and from tbe judgment this appeal was prosecuted.

The declaration filed in this cause is predicated upon an ' order for a large quantity of paper butter boxes of various sizes previously sold by appellant to appellee at tbe price of twenty-five and one-balf cents per pound, and an itemized account verified by affidavit was filed with tbe declaration. At tbe return term appellee filed its plea of general issue and gave notice thereunder, with extended specifications of its numerous defenses which we deem it unnecessary to set out in detail. Appellant filed a replication which in effect was a general denial of all matter pleaded in defense.

At tbe following term of court appellee filed a counter-affidavit alleging that tbe account sued on is untrue and incorrect, that it is not due and owing from defendant to plaintiff, and that tbe matters and things set forth by defendant in tbe notice under tbe plea of general issue are true and correct as therein set out. Appellant moved tbe court to strike out this counter-affidavit for tbe reason that it was filed too late and was insufficient. This motion was overruled, and this action of tbe court is assigned as error. Section 1978, Code of 1906, section 1638, Hemingway’s Code, provides that in a suit upon an itemized sworn account the affidavit attached to such account “shall entitle the plaintiff to judgment at tbe trial term of tbe suit, unless tbe defendant make affidavit and file with bis plea that the account is not correct,” and it is tbe contention of appellant that under this section tbe counter-affidavit must be filed before tbe return day. We do not think this position is maintainable. Tbe counter-affidavit was filed before tbe trial of tbe cause was begun, and we do not think it was error for tbe court to permit this affidavit to be filed at that time. Tbe counter-affidavit denied tbe correctness of the account generally without particularizing wherein it was incorrect, and was insufficient to put tbe plaintiff to tbe proof of the items thereof; but tbe plea of general issue, together with this affidavit, brought the defendant’s liability on the account in issue, and this issue should have been submitted to the jury if there was a conflict of evidence thereon.

We deem it unnecessary to set out the testimony offered upon the various issues raised by the pleadings. We have carefully examined this testimony and have reached the conclusion that there are conflicts in this testimony which require the submission- of the question of liability to the jury.

For the error in granting a peremptory instruction to defendant, the cause will therefore be reversed and remanded.

Reversed and remanded.