F. Strauss & Sons, Inc. v. Economy Cash Grocery

McGREGOR, J. This is an ordinary suit on open account. Plaintiff is a wholesale dealer in fruit and produce, and defendant, as its name implies, is a.retail dealer in groceries. To its petition the plaintiff attaches a statement of the account totaling the sum of $503.13, which tallies with the amount sued for in the body of the petition. The account was made out in due form on one of plaintiff’s regular bill-heads. It consists of a list of charges showing the dates and amounts of each separate day’s sales. The specific items making up the several separate amounts are not shown. The petition is sworn to by plaintiff’s attorney, and the statement of the account is sworn to by the secretary and treasurer of the plaintiff. No appearance was made in court by the defendant in any manner until after judgment was signed. The minutes of the court show that default was entered against all defendants on June 9, 1931, and that default was duly confirmed in open court on June 12, 1931, and that judgment was rendered, read, and signed in open court on the same date. The judgment itself states that it was rendered after the plaintiff had produced due proof and that the law and the evidence were in favor thereof. On June 13, 1931, the defendant filed a motion for- a new trial, which was taken up and tried and submitted on June 24th and overruled on June 25, 1931. On the trial of this motion no evidence was offered except the record in the case as made up to that date. From the judgment as rendered and signed, the defendant has appealed. [192] Counsel for defendant argues that sufficient evidence has not been produced on which to base a judgment and that, therefore, it should be reversed and the case either dismissed or remanded. Fault is found with the account attached to the petition on the ground that it is not sufficiently itemized. If defendant was not satisfied with the account as rendered, it was in its power to ask for an itemized statement in accordance with its wishes before default was entered and confirmed. Otherwise the account as rendered appears sufficient to us as it did to the judge of the lower court. In permitting judgment by default to be taken against it, the defendant is presumed by its silence to have confessed the justice of the plaintiff’s demand. C. P. art. 360. The account as rendered and produced on the trial of the case, in the absence of any objection, fully apprised the defendant and the court of what plaintiff was demanding. The judgment is correct and, therefore, affirmed, with all costs in both courts.