Loewenberg v. Gilliam

Riddick, J. (after stating the facts). We are of the opinion that the court erred in admitting the affidavit of Gilliam to establish the account for supplies which plaintiffs claim to have furnished Jones, the mortgagor. In suits upon accounts such evidence is permitted by the statute. Sand. & H. Dig. § 2972. But this is not a suit on account. It is an action against a person not connected with the account, in which the amount of damages is measured by the amount of supplies furnished by the plaintiff to the mortgagor. Though it is material, therefore, to establish the amount of the account, that cannot be done by an ex parte affidavit, for the statute does not apply to such a case, and the account must be established as other facts are proved. We do not think the other objections raised by defendant are well taken. If objection is made to the fact that the names of the partners are not set out, that can be cured by amendment. Judgment reversed, and cause remanded for a new trial.