Estate of Holmes v. Fujitani

Per curiam. The plaintiff’s case does not come within the meaning of Act. 52, S. L. 1905, of an action “founded upon an open account” supported by affidavit of the party that the account is correct; that all the goods have been delivered, and that all lawful offsets, payments and credits have been allowed, which under the statute is to be taken as prima facie evidence [576] thereof unless the party resisting 'the claim file with his answer a counter affidavit stating the items which are incorrect and those which are correct, failing which counter affidavit he is not to be permitted to deny the account or any item therein which he shall not particularize in the counter affidavit. An action upon an account stated or for goods sold and delivered, not accompanied by a bill of particulars or a statement of the account, is not an action upon an open account. “Estate of M. Y. Holmes” is not the name of a person nor does it appear from the record to be that of a corporation. The defect should be cured before further proceedings. Judgment vacated, case remanded. W. W. Thayer for plaintiff, ill. T. Furtado for defendant.