Clements v. Mayfield Woolen Mills

HARALSON, J. 1. There are two counts in the complaint, one declaring on an account stated, and the other for gcodSj wares and merchandise sold by the plaintiff to defendant; and the plaintiff, at the time of bringing his suit, indorsed on the summons and complaint, the fact that the account sued on was verified by affidavit, — as required by section 1804 of the Code. The sufficiency of the affidavit, to make the itemized account thus verified competent evidence of its correctness, was not questioned by defendant. The verified account was introduced on the tidal by plaintiff without objection by defendant. He here makes the point, as stated by him, that the action was not based upon an account, and there was a fatal variance between' the allegations and the proof. But this is a misconception of the contents of the complaint. It clearly enough appears that each count is one on an account. 2. The second error assigned, is as. to the form of the judgment rendered. It is in form a judgment nil dicit, with the award of a writ of inquiry. The jury assessed the damages, and judgment was entered on the verdict. The defendant appeared and pleaded in substance, non-assumpsif to each of the counts. The evidence, without conflict, sustained the second count for goods, wares and merchandise sold by plaintiff to defendant. The defendant requested the general charge, which was properly refused. The only question presented is, whether the judgment shall he reversed, in that it is one by nil dicil with a writ of inquiry, for [335] the jury to ascertain, merely, the amount of damages to which the plaintiff was, under the judgment rendered, entitled. The defendant having appeared and entered his pleas of non-assumpsit, it was manifestly erroneous to enter judgment nil dicit against him. — Green v. Jones, 102 Ala. 303. The defendant ivas entitled to have the credibility of the evidence offered by the plaintiff to sustain the account passed on by the jury, which right, in the judgment rendered, he was denied. Keversed and remanded.