Lonsdale v. Oltman

Gileillan, C. J. In this case, which was an action to recover for services rendered as a surgeon and for drugs and medicines furnished by plaintiff on divers dates, the defendant, pursuant to 1878 G. S. ch. 66, § 105, served written notice of demand for a copy of plaintiff’s account, which was disregarded. At the trial the defendant at the proper time objected to evidence of the account, for the reason that the demand had not been complied with, and the objection was overruled. The statute is explicit that, upon failure to furnish the copy when demanded, the party shall “be precluded from giving [53] evidence thereof.” All that the party demanding need do at the trial is to make timely and proper objection bringing to the knowledge of the court the fact of such demand. The last sentence of the section refers only to a case where a copy of the account has been served, but it is not. deemed sufficiently definite or particular. To bring an account within the statute, it is not necessary the party should have entered it in a book. It cannot concern the party demanding that the other kept the items in a book or in his head. (Opinion published 52 N. W. Rep. 131.) The admissions of the answer were not such that the plaintiff could have had a recovery without proof, and" that proof he was precluded from making. Order reversed.