Opinion
No. 41702.
March 20, 1961.
1. Guaranty — evidence — decree for lender as against automobile dealers, endorser and guarantor of indebtedness.
Evidence in lender's action against automobile dealers and an endorser and guarantor of indebtedness, for balances allegedly due on outstanding floor plan accounts, on customers' repossession accounts, and on capital loan account, supported decree for lender.
2. Equity — bill in chancery for balance due on obligations filed as exhibits to bill not an action on sworn itemized account — no counteraffidavit required.
No counteraffidavit on behalf of defendants particularizing wherein accounts sued for were incorrect was required where bill of complaint in Chancery Court did not purport to be a sworn itemized account, but was for balances allegedly due on obligations filed as exhibits to bill of complaint, even though initial pleading in Circuit Court had been upon sworn account, and counteraffidavit thereto had been filed. Sec. 1754, Code of 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Chancery Court of Forrest County; THOMAS D. OTT, Chancellor.
Edward J. Currie and Edward J. Currie, Jr., Hattiesburg, for appellants.
I. In a suit upon an open account, where this account is attached to the declaration as provided by Section 1469, Mississippi Code 1942, and where the account is sworn to in accordance with Section 1754, Mississippi Code, 1942, this account must be an itemized account. It must show the dates of purchase, the kind of goods, the quantity, and the price, otherwise neither of these statutes is complied with. W.M. Finck Co. v. Brewer, 133 Miss. 9, 96 So. 402.
II. Where plaintiffs, suing on open account, proceed in trial court as if counter-affidavit is sufficient, there is a waiver of any failure to comply with Section 1754, Mississippi Code of 1942, because of not particularizing wherein the sworn account is not correct. Fatheree v. Griffin, 153 Miss. 570, 121 So. 119.
James Finch, Hattiesburg; Watkins Eager, Jackson, for appellees.
I. Even if there was a waiver by plaintiff, appellee, of the failure of defendants, appellants, to file a sufficient counter-affidavit under Sec. 1754, there will be no reversal of this case because plaintiff adequately proved by direct and positive testimony the amount of the indebtedness sued for and the liability of the defendants therefor as found by the Chancellor. Antrim Lumber Co. v. Snell (Okla.), 36 P.2d 920; Baum v. Lynn, 72 Miss. 932, 18 So. 428; Bennett v. Chaffe, 69 Miss. 279, 13 So. 731; Blacketor v. Cartee, 172 Miss. 889, 161 So. 696; Boatright v. Horton, 227 Miss. 698, 86 So.2d 864; Carter v. Martin (Miss.), 25 So.2d 706; Chancellor v. Melvin, 211 Miss. 590, 52 So.2d 360; Crawford v. Bank of Seminary, 178 Miss. 129, 172 So. 750; Fatheree v. Griffin, 153 Miss. 570, 121 So. 119; Finley v. Armstrong, 117 Miss. 289, 78 So. 177; Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036; Gulf S.I.R. Co. v. Kelly, 131 Miss. 133, 95 So. 131; Harris v. Armstrong, 232 Miss. 192, 98 So.2d 463; Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So.2d 551; Jones v. Crawford, 201 Miss. 791, 30 So.2d 513; Kirk v. United States F. G. Co., 214 Miss. 441, 58 So.2d 924; Long v. Magnolia Hotel Co. 236 Miss. 655, 111 So.2d 645, 114 So.2d 667; McComb Dressed Poultry Co. v. McComb Mill Co., 227 Miss. 682, 86 So.2d 858; Massachusetts Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171; Metcalfe v. Wise, 159 Miss. 54, 132 So. 102; Morgan v. King, 128 Miss. 401, 91 So. 30; Morris v. City of Columbia, 184 Miss. 342, 186 So. 292; Nabors v. Goldforb, 77 Miss. 661, 27 So. 641; Osborn v. Thomas, 221 Miss. 682, 74 So.2d 757; Parker v. Thornton, 206 Miss. 662, 40 So.2d 538; Priest v. Poleshuck (N.J.), 102 A.2d 636, 105 A.2d 541; Roberts v. Robertson, 232 Miss. 796, 100 So.2d 586; Sanders Alexander, Inc. v. Jones, 221 Miss. 143, 72 So.2d 240; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Stockstill v. Gerson (Miss.), 35 So.2d 60; Thompson v. Bryant, 75 Miss. 12, 21 So. 655; Tichenor v. Woodburn Sarven Wheel Co., 54 Miss. 589; Young v. Weaver, 202 Miss. 291, 32 So.2d 202; 32 C.J.S., Evidence, p. 851; Griffith's Mississippi Chancery Practice, Secs. 567, 674.
II. This cause cannot be reversed for any alleged inadequacy of the sworn account attached to the declaration and bill of complaint. The "accounting" was entirely adequate. Even if it had not been defendants — appellants failed to seek to obtain any additional bill of particulars and waived any defects in the "account". Britain v. Magnolia State Casket Supply Co., 210 Miss. 264, 49 So.2d 404; Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711; Mississippi State Highway Comm. v. Taylor, 237 Miss. 847, 116 So.2d 757; Parker v. Thornton, supra; Refuge Cotton Oil Co. v. Twin City Fire Ins. Co., 152 Miss. 522, 120 So. 214; Skinner v. Collier, 4 How. (5 Miss.) 396; Smith v. Lawson (Ala.), 88 So.2d 322; Tierney v. Duffy, 59 Miss. 364; Western Casualty Surety Co. v. Fox-Everett, Inc., 223 Miss. 388, 78 So.2d 363; W.M. Finch Co. v. Brewer, 133 Miss. 9, 96 So.2d 402; 88 C.J.S., Trial, p. 237.
III. This case cannot be reversed because of any alleged erroneous interpretation or application by the Chancellor of Sec. 1754, the decree of the Court being supported by adequate facts and the right result having been reached this Court will affirm the decree even though the Chancellor assigned erroneous reasons for his conclusions which, however, as a matter of fact, the Chancellor here did not do. Baker v. Building Loan Assn. of Jackson, 168 Miss. 808, 152 So. 288; DeFraites v. State, 227 Miss. 496, 86 So.2d 664; Dollar v. Board of Education of Simpson County, 227 Miss. 432, 86 So.2d 489; Forman v. Oberlin, 222 Miss. 42, 75 So.2d 56; Harris v. Bailey Avenue Park, 202 Miss. 776, 32 So.2d 689; Livingston v. Bounds, 212 Miss. 184, 52 So.2d 660; Neal v. Newburger Co., 154 Miss. 691, 123 So. 861; Thomas v. Mississippi Valley Gas Co. (Miss.), 113 So.2d 535; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443.
IV. There is no reversible error in this record on account of the failure of appellee to produce sufficient records or on account of any ruling on evidence. Board of Review v. Williams, 195 Miss. 618, 15 So.2d 48; Brown v. State, 173 Miss. 542, 161 So. 465; Church v. Church (Maine), 120 A. 428; Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457; Eaton v. State, 163 Miss. 130, 140 So. 729; Equitable Life Assur. Soc. of U.S. v. Clark, 80 Miss. 471, 31 So. 964; Fatheree v. Griffin, supra; Finley v. Armstrong, supra; Frisby v. Grayson, 216 Miss. 753, 63 So.2d 96; Greyhound Corp. v. Townsend, 234 Miss. 839, 108 So.2d 853; Hoye v. Newton Lumber Mfg. Co., 99 Miss. 229, 54 So. 839; Lake v. Harrington, 210 Miss. 74, 48 So.2d 845; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; Meridian Hatcheries v. Troutman, 230 Miss. 493, 93 So.2d 472; Miller v. Frick, 107 A. 394; Moody v. Roberts, 41 Miss. 74; Moore v. Joyce, 23 Miss. 584; Nabors v. Goldford, supra; Palmer v. Fair, 140 Miss. 294, 105 So. 513; Redwine v. Rohlff Lumber Supply Co. (Wyo.), 91 P.2d 54; Roberts v. Interstate Life Acc. Ins. Co., 232 Miss. 134, 98 So.2d 632; Stevens v. Locke, 156 Miss. 182, 125 So. 529; Strider v. Calvert Fire Ins. Co., 226 Miss. 773, 85 So.2d 183; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887; Vaughan v. Peoples Mortgage Co. (Cal.), 20 P.2d 335; 32 C.J.S., Evidence, Sec. 788; Griffith's Mississippi Chancery Practice, Sec. 553.
The appellee, Murdock Acceptance Corporation, is engaged in the business of financing automobiles and automobile dealers, and this suit was filed by and on behalf of the said Murdock Corporation against Clinton E. Barron, Jr. and Joseph A. Barron, brothers and partners, doing business as the Barron Ford Motor Company at Collins, Mississippi, and against their father, Clinton E. Barron, Sr., as endorser and guarantor of certain indebtednesses of the said partnership to the appellee Murdock Acceptance Corporation.
The suit is for balances allegedly due on (1) outstanding wholesale floor-plan accounts; (2) balances on customer repossession accounts; and (3) balance on a capital loan account. One of the questions involved on this appeal is whether or not the account as sued on constitutes a sworn itemized account as provided for by Section 1754, Code of 1942, which provides, among other things, that "A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account, and that it is due from the party against whom it is charged; and in any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due * * *"
The suit was originally filed in the Circuit Court of Forrest County, but upon motion of the defendants, Barron Brothers and their Father, the case was transferred without objection to the Chancery Court of Forrest County. In the circuit court the defendants filed a counter affidavit in response to the sworn account sued on, but after the cause was transferred to the chancery court, the Murdock Acceptance Corporation, as complainant, reformed its pleadings by filing a bill of complaint in the said court. In the latter court, the defendants, Barron Brothers and their Father, did not file a counter affidavit, but the complainant did not ask for a judgment against the defendants on the sworn account sued on, but rather the complainant elected to prove by direct, positive testimony the balances due on the wholesale floor-plan accounts, the deficiencies due on automobiles repossessed from the customer, and the balance due on a capital loan account, the defendants having obtained a capital loan from the appellee in the sum of $20,000, which was endorsed by Clinton E. Barron, Sr., who was engaged in the business of Barron Motor Company, Hattiesburg, Mississippi, and which was secured by a deed of trust which contained an obligation on the part of Barron Brothers and their Father, Clinton E. Barron, Sr., and which deed of trust was duly signed by all of the defendants, and whereby Clinton E. Barron, Sr. obligated himself to pay additional indebtednesses of his said two sons over and above the said $20,000 capital loan.
In the bill of complaint filed by the appellee in the chancery court, the complainant alleged that the defendants had not paid the amounts due and owing on certain trust receipts listed as follows:
Date Acc. No. Motor No. Amount
4/14/56 445 M6MT110404 $2,009.31 4/14/56 804 FLOV6U13955 75.00 4/14/56 435 FLOV6U139701 150.00 4/27/56 447 56 Ford #16499 271.49 _________ $2,505.80(Hn 1) There was an affidavit attached to the bill of complaint containing the names of numerous customers, stating the account number and the amount due by each of the long list of customers, and the date when the balance became due and payable by each. As heretofore stated, there was no counter affidavit filed in the chancery court but the complainant did not rely upon the failure of the defendants to file such a counter affidavit or on the insufficiency of an affidavit under the said Section 1754, supra. The complainant in the suit, after it reached the chancery court, assumed the burden of proving the balances due on the wholesale floor plan accounts, the deficiencies on the conditional sales contracts where cars had been repossessed from the customers, and the balance due on the capital loan account. On conflicting testimony as to the liability of Clinton E. Barron, Sr. for all of the balances sued for, and on the full and detailed testimony of the witness C.W. Conner for the complainant, as well as upon the testimony of the Barron Brothers, the court found that all of the defendants were jointly and severally liable to the complainant Murdock Acceptance Corporation in the sum of $2,905.34, and that the defendants Clinton E. Barron, Jr. and Joseph A. Barron were jointly and severally liable to the complainant in the additional amount of $3,230.66, with legal interest thereon from date. The decree was rendered on June 20, 1959. There is no cross appeal from the disallowance by the chancellor of part of the indebtedness sued for as against the defendant Clinton E. Barron, Sr., and we are of the opinion that the decree of the chancellor was supported by the testimony and that no error was committed as to the amount of indebtedness and the attorneys' fees allowed.
(Hn 2) We are of the opinion that under the holding of this Court in the case of W.M. Finck Company v. Brewer, et al., 133 Miss. 9, 96 So. 402, the bill of complaint filed by the appellee in the chancery court, after the cause was transferred, did not purport to be a sworn itemized account within the contemplation of Section 1754, supra, but, as heretofore stated, the suit was one for balances allegedly due on certain written contractual obligations which were filed as exhibits to the bill of complaint. No counter affidavit on behalf of the defendant, particularizing wherein the amounts sued for were incorrect, was required, as provided by said Section 1754, supra.
We think that the complainant assumed to prove, and did prove, by direct and positive proof, all of the items of indebtedness for which the decree was awarded, and that although the evidence as to the liability of Clinton E. Barron, Sr. was in conflict, we are unable to say that the decree of the chancellor was manifestly wrong, and it must therefore be affirmed.
Affirmed.
Arrington, Gillespie, McElroy and Jones, JJ., concur.