Bower v. Henshaw

Chalmers, J., delivered the opinion of the court. Henshaw & Sons brought suit against Bower on an open account verified by affidavit of its correctness in accordance with § 782 of the Code. The defendant pleaded non assumpsit, payment and the Statute of Limitations ; and under his plea of payment gave notice of special matter amounting substantially to an accord and satisfaction. On the trial, after the testimony had closed, and the parties were about to go to the jury, the plaintiffs made and the court sustained a motion to exclude all the' defendant’s testimony from the jury, because the correctness of the account sued on was sworn to, and the defendant had filed with his plea no affidavit that the account sued on was incorrect. Code, § 782. The evidence of the defendant thus excluded related solely to his plea of payment, and was intended to show that the account sued on had been discharged by an arrangement between the defendant and the plaintiffs’ attorneys, by virtue of which, there had been transferred and accepted in payment of the account a judgment held by the defendant against one Hudson. In the absence of any affidavit denying the correctness of the account sued on, was this or any other evidence admissible, [349] or rather were not the plaintiffs, in accordance with the terms of the statute, entitled to a judgment ? The statute provides that where suit is brought upon an open account, verified by the affidavit of the plaintiff, he shall be entitled to judgment at the trial term of the suit, unless the defendant shall file with his plea an affidavit that the account is not correct, in which event the affidavit to the account shall not be evidence, except to entitle the plaintiff to judgment for such part of the account as the defendant by his affidavit may admit to be due. Rev. Code, ubi supra. As broad as this language seems, we think that it does not require an affidavit with the plea, except where the original correctness of the account or of some of its items is attacked. The sole object of the statute is to dispense with proof of the original correctness of the account, except where the defendant shall give notice by his affidavit that he proposes to deny it. Its only effect is to make the account to some extent an account stated. But if the construction placed upon it by the learned judge below is correct, it would make a sworn account more valuable in some respects than a promissory note, since to the latter no plea save that of non est factum is ordinarily required to be under oath, while to the former no unsworn plea whatever would be admissible. We think that under the statute we are considering such pleas only as are intended to put in issue the original correctness of the account, sued on are required to be verified by affidavit. It follows that the court below erred in excluding the defendant’s testimony under the plea of payment. It is insisted on behalf of the defendants in error that, even though there was error in the exclusion of testimony, there will be no reversal, because the result would not have been changed by its admission. This proceeds upon the idea that the attorneys of Henshaw & Sons, having had no authority to accept any thing but money in payment of the account, their clients were not bound by the acceptance of the transferred judgment, and that hence the excluded testimony was irrelevant. It is true that an attorney at law, without special authority, can accept nothing but money in satisfaction of a claim placed in his hands for collection; but in the case at [350] bar several years elapsed after the acceptance by the plaintiffs’ attorneys of the transferred judgment before the institution of this suit; and it may well be said that this amounted to a ratification of the attorneys’ act. At all events, this question should have been submitted under proper instructions to the jury. Judgment reversed, and cause remanded for new trial.