Gainer & Co. v. Pollock & Co.

Gainer & Co. v. Pollock & Co. Action on Common Counts. 1. When sworn account is not admissible as evidence. — In an action on an account, where the plaintiff does not indorse on the summons and complaint, or other original process, the fact that the account is verified by affidavit, as required by the statute (Code, § 2773), an ex parte itemized statement of the account, not proved in one of the ordinary modes of proof, but only verified by affidavit, is not admissible as evidence for the plaintiff. Appeal from the Circuit Court of Geneva. Tried before the Hon. J. M. CaRmichael. This was an action by J. Pollock & Co., a partnership composed of Jacob Pollock and Leopold Lowenstein, against W. H. Gainer & Bro., a partnership composed of W. H. Gainer and James Gainer. The complaint contained only the common counts, on an account, on an account stated, and for goods, wares and merchandise sold by the plaintiffs to the defendants at their request. On the trial, as shown by the bill of exceptions, the plaintiffs offered in evidence an itemized statement of account for goods sold by the plaintiffs to the defendants. This account was verified by the affidavit of said Jacob Pollock. The defendants objected to the introduction of said account in evidencie, because the plaintiffs had not indorsed on the summons and complaint the fact that the account, which is the foundation of this action, is verified by affidavit. The court overruled the objection, and allowed said account to go to the jury as evidence, and the defendants excepted. Judgmant for plaintiffs, and defendants appeal, assigning as error the single ruling above mentioned. W. D. Borerth, for appellants. M.. E. MilliuaN, contra. [MAJORITY — WALIvEB, J.] WALIvEB, J. It is only by force of the statute that, in suits upon accounts, an ex parte itemized statement of the account, not proved in one of the ordinary modes of proof, but only verified by affidavit, is made legal evidence, under certain conditions fixed by the statute. The statute prescribes as a condition to the competency of such evidence that the plaintiff', at the time of bringing his suit, indorse on the summons and complaint, or other original process, the fact that the account is verified by affidavit. — Code, § 2773. No such indorsement was made in the present case. The objection on this ground to the admission in evidence of the account offered by the plaintiffs should have been sustained. Beversed and remanded.