Opinion
No. 81.
Argued March 29, 1971. —
Decided May 7, 1971.
APPEAL from a judgment of the county court of Milwaukee county: LEON H. JONES, County Judge of Manitowoc County, Presiding. Reversed and remanded.
For the appellant there was a brief by Frisch, Dudek, Slattery Denny, attorneys, and Edward A. Dudek and C. Michael Hausman of counsel, all of Milwaukee, and oral argument by Mr. Hausman.
For the respondent there was a brief by Kohner, Mann Kailas, attorneys, and Robert L. Mann of counsel, all of Milwaukee, and oral argument by Robert L. Mann.
This was an action on an open account commenced in the Milwaukee county court by Telefunken Sales Corporation against Bernice A. Kokal, formerly known as Bernice A. Weber, individually, and formerly doing business as Allan's Camera Center. Trial was had to the court without a jury.
Much of the evidence of record consists of various allegations and counter-allegations involving the sale and the ownership of the Camera Center. It does not appear that these facts, insofar as they involve the transaction involving the purported transfer of the business and its subsequent reconveyance, are relevant to the issues presented on this appeal. The only question presented is the alleged indebtedness of Bernice A. Kokal for certain purchases allegedly made from the Telefunken Sales Corporation.
The evidence produced at trial consisted entirely of the testimony of Del MacFall. Del MacFall was an employee of Bernice A. Kokal during the period of time when certain obligations of an open account were incurred as a result of purchases from Telefunken. MacFall testified that he was in charge of making purchases and that he had ordered for the Camera Center certain items which had been delivered by Telefunken. He testified as to the total amount due at the time he left the employment, but he was unable to state that the sum claimed by Telefunken was due and owing at the time of the trial.
At the completion of MacFall's testimony, plaintiff rested. The defense counsel then moved to "limit the sufficiency of [the] evidence." It is apparent from the arguments of counsel that the motion was intended to limit the effect of MacFall's testimony to proof of the fact that the items had been ordered, that the prices stated were correct, and that, at the time MacFall had ceased working, the amount claimed was due and owing, and that no inference was to be drawn from the testimony that the balance due at the time of trial was the same or that it was sufficient to prove any present obligation of Bernice A. Kokal to Telefunken. Defense counsel stated that, were this motion granted, he would then rest his case and move to dismiss on the basis that the plaintiff had rested without showing any indebtedness presently due. Upon the granting of that motion, defendant's counsel then rested and moved for judgment dismissing the action on the merits. The trial judge granted the motion to dismiss but limited the effect of his order to a dismissal without prejudice.
Subsequently, an appeal was taken by defendant Bernice A. Kokal in which she took the position that the dismissal should have been upon the merits. Telefunken has petitioned for a review of the order and the subsequent judgment, contending that the evidence adduced was sufficient for it to prevail.
On oral argument in this court, counsel for Bernice A. Kokal acknowledged that, in view of his failure to put in any case in defense, were this court to find that the evidence adduced by the plaintiff was sufficient, that this court would be obligated to grant judgment on the merits for the plaintiff. Defense counsel, however, concluded that, since the judge had not made a determination on the merits, a mandate sustaining the defendant's position would merely result in a reversal of the order and judgment with leave for the defendant to put in her defense.
We are satisfied that the evidence adduced by Telefunken was sufficient to show a prima facie case. In the defendant's answer, she contended that there had been no indebtedness to Telefunken as alleged in the complaint and that no payment had been made on these accounts. The testimony of MacFall was clearly sufficient to show that the indebtedness had been incurred and that the accounts in fact existed. The plaintiff sustained its burden of showing the existence of these accounts, alleged in its complaint. The defendant, by failing to dispute the existence of the accounts by putting in evidence of their nonexistence or of their payment, acquiesced in the plaintiff's proof when it moved to rest. The burden of proving the correctness and existence of an open account is on the plaintiff. Silva v. Linneman (1946), 73 Cal.App.2d 971, 167 P.2d 794; 1 Am. Jur.2d, Accounts and Accounting, p. 391, sec. 19. All evidence tending to show the existence and correctness of an account is admissible, and circumstantial evidence may be used to prove the existence and correctness of the accounts. Cumberland Grocery Co. v. York (1929), 9 Tenn. App. 316; 1 C.J.S., Account, Action on, pp. 606, 607, sec. 16b. Ordinarily, an account may be proved by proving the date, correctness of the charges, and the reasonableness of the items of the account. While an account can be proved by the methods set forth in the manner provided in sec. 889.22, Stats. (notice to admit facts), the oral testimony of individuals with personal knowledge of the transactions involved is the most persuasive evidence of the existence and correctness of the accounts. Silva v. Linneman, supra; O'Connor v. Egan (Mo.App. 1955), 274 S.W.2d 334.
In this case MacFall testified that he had ordered this merchandise for the Camera Center owned by Bernice A. Kokal and that the merchandise was delivered by Telefunken. He also testified as to the date, correctness, and the charge made for each item in the account. While, admittedly, his evidence only established his knowledge as of November 9, 1967, the date when the Camera Center business was returned to the management of Bernice A. Kokal, that account necessarily remained in existence until the time of trial unless it was paid or otherwise discharged. Payment and discharge are, however, affirmative defenses, which must be pleaded and proved. Debelak Bros., Inc. v. Mille (1968), 38 Wis.2d 373, 157 N.W.2d 644; Estate of Happel-Bossi: Baehr v. Buell (1907), 133 Wis. 119, 113 N.W. 433; 70 C.J.S., Payment, pp. 282, 283, sec. 81. The plaintiff need only prove the debt. He need not prove the negative of these affirmative defenses in order to establish a cause of action for debt. See Felger v. Kozlowski (1964), 25 Wis.2d 348, 130 N.W.2d 758.
The trial in this case was held in November of 1969, and the proof of the existence and the amount due on the account in November of 1967, in the absence of other evidence, is sufficiently probative to support a finding that the account in the same amount existed at the time of trial. The court erred in concluding that the testimony of MacFall was insufficient to make a prima facie showing that the debt was due and owing at the time of trial and, in effect, concluding that it was the duty of the plaintiff to prove the negative of any affirmative defenses that the defendant might have. The initial motion of the defendant to limit the probative effect of MacFall's testimony should have been denied.
It is equally apparent that, in the ordinary circumstances where a prima facie case has been presented by the plaintiff and the defendant declines to assert any defenses, a judgment for the plaintiff on the merits is appropriate. Since the court declined to rule on the merits, despite the all-or-nothing position taken by the defendant on this appeal, we conclude, in view of the procedural status of this case, that the defendant should have an opportunity to produce whatever defenses she may have to the prima facie case submitted at trial by the plaintiff.
By the Court. — Judgment reversed and cause remanded for further proceedings consistent with this opinion, costs to be taxed by the respondent.