Hunter v. Wilkinson

SlMRALL, J.: Indebitatus assumpsit was brought by G. B. Wilkinson, executor, etc., of- Leak, deceased, surviving partner of Barnett, deceased, to recover for medical services rendered to Isaac H. Hunter. To the plea of the statute of limitation, of three years, the plaintiff replied: 1st. That the accounts now due, respectively on the 1st of J anuary, 1861 and 1862, and deducting the time of the suspension of the statutes during the war, and for twelve months afterwards, suit was brought in proper time; 2d. Replication same as the first, with the additional averments that letters testamentary were granted to Wilkinson, on the 4th March, 1867 (the testator having died the previous February, the 18th), and excluding twelve months from the grant of letters, and [728] the period of suspension of the statutes, three years, had not expired since the right of action accrued. The demurrer assigns two causes: 1st. That the replications are double, presenting two issues; 2d. They were not a sufficient reply to the plea. Duplicity in a plea is embracing in it two or more distinct separate answers to the preceding pleading, when one would be complete and sufficient. As where the defendant pleaded in disability of the plaintiff ten different outlawries adjudged against him. This was double, because the plaintiff was disabled as well by one outlawry as by the whole ten. Stephen’s PL, 252. But matters, however multifarious, will not make the pleading double that together constitute but one connected proposition. Stephen’s PL, 262. At common law, the plaintiff cannot reply two distinct replications to the defendant’s plea. 1 Ohitty’s PL, 649. But article 105, Rev. Code, 495, allows the plaintiff on leave of the court to plead in answer to the plea, “ as many several matters as he shall think necessary to maintain his action, ” upon the prescribed affidavit being made. The same'privilege is accorded to the defendant in answer to any pleading of the plaintiff. The condition upon which the plaintiff may reply “ several matters to the plea, is the leave of the court upon an affidavit setting forth the truth of the new matter. ” The court has no discretion to waive the affidavit or mitigate the terms. The affidavit not having been made, the plaintiff had no right to file two replications. As we have on a former occasion said, demurrer is not the proper mode to reach the irregularity. It should have been by motion to remove the second one from the files. We suppose the purpose of the demurrer not to confine the plaintiff to a single replication and to invoke the judgment of the court on that point. Regarding the second replication as we do, as improperly in the record, and testing the sufficiency of the first, by the demurrer, we think that the demurrer was properly overruled. The first, if true, would avoid the plea. The plaintiff not placing himself in the circumstances prescribed by the statute [729] to file a second, it is a nullity. The exception taken by demurrer indicates that the defendant had waived no prerequisite to the right to plead it. This makes us dispose of the controversy on its merits. A witness was asked if he did not know, in many instances,, that money was paid to Dr. Leak on his accounts, and he failed to credit the parties paying. Objection was made, because there was no plea of payment, or set-off filed. If, for any legitimate purpose, the matter inquired about was competent testimony, it ought to have been admitted to the jury. The books of a tradesman, or of a mechanic, or professional man, as evidence of goods sold, of work done, or services rendered, is secondary, and the terms upon which they are received is clearly stated in Moody v. Roberts, 41 Miss., 78. Whether to be admitted at all or not, is a question for the court, determinable by the considerations of whether the book of accounts bears internal evidence of being fairly kept, and whether the entries are contemporaneous, or nearly so, with the transactions of the business. If there be alterations and changes in the entries, they must be explained. They “ are not conclusive evidence of the claim, but testimony tending to establish it, the credit of which is to be weighed by the jury.” It was held in 80 Barb. N. Y. R., 42, that testimony of general immoral character, was not competent to impeach books of account; as that a man was given to intemperance or licentiousness — -conduct in nowise connected with his character as a business man. It was said in Larue v. Bowland, 7 Barb. R., 111, that it was competent for the court “ to hear anything proved^ which will show that the books are unworthy of credit; and if the proof sustains the objection, to reject them altogether, and leave the party to his common law proof.” We think that it is proper to submit to the jury any facts which tend fairly to impeach the books. The object of the plaintiff was to show, in detail, the amount of services rendered. There was no pretence of payment; there was neither plea nor evidence on the point. If the testator failed in some instances [730] to put a eredit on the books, and that circumstance were admitted against his executor in this suit, the door should have been opened for explanation, and the instances might have'been accounted for by accident, mistake, or some other reason; besides, payment is . affirmative matter, capable of proof. These were transactions inter alia, not germain to the issue. If the witness had proposed to speak of charges for services not rendered, of mutilations, and alterations of charges, it would have been competent evidence. If the contest before the jury were payment, in part or wholes and the books were offered to show no entry of credit, then the excluded testimony would have been pertinent. The only issue was, were the services performed, and what was their value. At what time did the statute of limitations begin to run against the cause of action ? The position of the plaintiff in error, as evinced by his prayer for instructions, was that the-cause of action begun when the last item in the account was charged. Art. 20 of Code, 401, embraces two classes of accounts, first, mutual; second, all other open accounts. As to the former, the cause of action shall be deemed to have accrued from the true date of the last item proved. As to the latter, from the date the several items thereof became due. The account sued on falls within the second class. When did the several items become due and payable ? In the absence of an agreement to the contrary, from the date of the rendition of the service. But there was evidence that the bills of physicians at Yazoo city, were due at the end of the year, in which service was performed. That may be the result of a usage so universal and well known, as that there may be an implied assent to it. If the testimony was satisfactory to the jury on the point, then the accrual of the cause of action was on the first of January of 1861 and 1862. Parties may contract as to the time when such debts shall become due, or there may be a local usage, so well known and universally acquiesced in as to the time of payment, that it will be implied that they were due at that time, unless it [731] is shown a different time was agreed upon. There was no error, then, in the refusal of the court to instruct the jury as prayed by the defendant. It is quite clear that the suit was brought within three years after the debt was due, deducting the time of the suspension of the statutes. The proof of the claim did not rest solely on the books of account. There was other testimony of the attendance of the physician, and rendering services. We think that justice has be.en done, and affirm the judgment.