Morrison v. Few , 3 Willson 459 ( 1888 )

Opinion by

Will-son, J.

§ 384. Account not itemized may be proved, when and how; case stated. Appellant sued appellee on an account for rents and advances, and sued out a distress warrant, which writ was levied, etc. Appellee pleaded a counter-claim, and also pleaded in reconvention for damages, both actual and exemplary, for the alleged illegal, unjust and malicious suing out of the distress warrant. A verdict and judgment were rendered for appellees- for $40.66. In the account sued upon were the following charges: “March 19, 1887. M’d’se, bill rendered, $12.50.” June 25, 1887. M’d’se, Barry & Love, $15.25.” On the trial appellant offered evidence to prove these charges, which evidence was objected to by appelleempon the ground that said charges were not itemized. The objection was sustained and the proposed evidence rejected. Held error. Appellee should have specially excepted to the account because it was not itemized. Not having done this, he could not take advantage of such defect by objections to evidence. Appellant proposed to prove said charges by the admissions of appellee that the account sued on was correct, which was competent evidence. . [2 App. C. C. § 491; ante, § 190.]

§ 385. Insufficient verdict. Under the evidence appellee was not entitled to recover any damages upon his plea in reconvention. The verdict of the jury was a general one in his favor for $40.66, without specifying whether that .amount was awarded upon his counterclaim or upon his plea in reconvention. If any portion of said amount was awarded as damages, the vei’dict is wrong; and as it cannot be ascertained that no portion of said amount was awarded as damages, the verdict is uncertain and will not support the judgment. [Ante, § 200.]

Reversed and remanded.