Tex. & St. Louis R'y Co. v. Smith , 2 Wilson 44 ( 1883 )

Opinion by

Willson, J.

.§51. Account; meaning of, as used in article 2%66, Revised Statutes. Appellee sued appellant upon a cause of action stated as follows:

To services as conductor of trains No. 1 and 2, from June 1st

to June 30th inclusive, at $90 per month.................... $90 00

To services as conductor of trains No. 1 and 2, from July 1st to July 16th inclusive, at $90 per month.................... 48 00

$138 00

November 24, 1883.

Attached to this claim was the affidavit of the plaintiff, verifying it in accordance with article 2268 of the Revised Statutes. Upon the trial of the case this claim was introduced, in evidence over objections of the defendant, and upon this evidence alone plaintiff recovered judgment. Held, error; the claim was not an account within the meaning of article 2266 of the Revised Statutes, and was not admissible in evidence as a verified account. The word “account,” as used in that article, is used in its popular, and not technical, sense, and' applies to transactions between persons in which, by sale upon the one side, and purchase upon the other, the title to personal property is passed from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing, and it does not mean one or more isolated transactions resting upon special contract. [McCamant v. Batsell, 59 Tex. 363; W. & W. Con. Rep. §§ 759, 777.] In this case the cause of action is an isolated transaction, resting upon special contract.

Reversed and remanded.