English v. Miltenberger , 51 Tex. 296 ( 1879 )

Bonner, Associate Justice.

The decisive question in this case is presented by the appellant in the first proposition under the second assignment of error, as follows: “ The court below erred in refusing to allow defendant, upon objection being made by plaintiffs, to put in evidence a certain bill or invoice for coal received by defendant from plaintiffs, offered for the purpose of contesting and disproving certain items in the account sued on, and in refusing to allow defendant to introduce any evidence to contest or disprove said account or any item thereof, upon the ground that said account having been duly sworn .to by plaintiffs, and no affidavit having been filed by defendant denying the justice thereof, the defendant could introduce no evidence to contest or disprove the same or any part thereof.”

This involves the construction of the act of the fourteenth Legislature, 52, entitled “An act to regulate the collection of accounts,” which reads as follows:

“ That an account on which suit has been or hereafter may be brought in any of the courts of this State, supported by the affidavit of the plaintiff, his agent or attorney, that the account is just and correct, taken before a judge or clerk of a court of record having a seal, or before a notary public, shall be prima-facie evidence against the party sought to be provided, however, that the party thus sought to be charged shall have the right to rebut such prima-facie evidence by denying under oath the justice of such account, or any part thereof, setting forth in his affidavit the items and particulars which are unjust, which affidavit shall be filed in the due order of pleadings as is required in filing a plea of non est factum.”

At common law, the execution of a written instrument declared .on by the plaintiff and alleged to have been executed by the defendant, was required to be proven before it could be offered in testimony, and, by a familiar rule of evidence, this proof had to be made by the subscribing witnesses, if any.

To prevent the delay and expense incident to this mode of procedure, the act of May 13, 1846, sec. 86, (Paschal’s Dig., art. 1443,) provides:

“ When any petition, answer, or. other' pleading shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party or by his authority, and not alleged therein to be lost or destroyed, such instrument or note in writing shall be received as evidence, without the necessity of proving its execution, unless the party by whom or by whose authority such instrument or note in writing is charged to have been executed, shall file his affidavit in writing denying the execution thereof.”

This statute, however, did not reach open accounts, which still had to be proven as at common law. The expense of witnesses for this purpose greatly increased the cost of litigation. To remedy this, the Legislature passed the subsequent act, under consideration, and which was intended to give to sworn accounts the same prima-facie standing in the courts as had been previously given to instruments charged to have been executed by the other party, to the extent of dispensing with further proof of their correctness, unless the same, or some items thereof, were denied, also under oath, in the nature of a plea of non est factum. As to the whole or so much of the account as may have been thus denied, the practice would remain as it “ aforetime was.”

The statute regulates the practice as to the evidence and also as to the pleading in such cases in those courts where written pleadings are necessary, and virtually requires that the parties should join in a sworn issue, when the account is intended to be contested in whole or in part. This is the practice which has prevailed in at least some of the districts in the State, and which is intimated as being proper by the Court of Appeals in Johnson v. Anderson, 2 Tex. Law Jour., 276.

To construe the statute otherwise would frequently prejudice the rights of the plaintiff, who, without notice by sworn answer that his claim would be contested, might, without his witnesses being in attendance, confidently announce ready for trial, and then have his own oath overcome by the testimony of witnesses for the defendant, without the opportunity of supporting testimony; or else, to guard against this, he would have to keep his own witnesses in attendance; and thus the beneficial objects of the statute would he defeated.

This rule would not apply to a separate and independent defense not going to the “justice” of the account sued on, relied upon to defeat the plaintiff’s cause of action.

The plea in reconvention in this case did not set up such defense.

There being no error in the judgment below, the same is affirmed.

Abetrmed.

Opinion March 14,1879.

March 25, motion for rehearing filed.

George Mason, for motion.

John T. Harcourt, resisting.

Opinion on rehearing, March 28,1879.