McCormick v. F. Altneave & Co.

73 Miss. 86 | Miss. | 1895

Whitfield, J.,

delivered the opinion of the court.

The declaration, after averring fully the facts necessary to make the wife’s estate liable, then alleges that the note was given by the husband, acting as the agent of the wife, ‘ ‘ who was not to be relieved thereby from any obligation ’ ’ to plaintiffs; that it was to bind her, just “as if she had affixed her signature thereto; ’ ’ that it was so executed by the h usband, ‘ ‘ in extension of said” balance of $355.80, and, “in acknowledgment” of that amount, “ ascertained then to be due,” January 1, 1892. The note is attached as an exhibit to the declaration and became part of it. Code of 1892, § 677. We think the note is to be treated as an account stated, and the suit as a suit on an account stated. The note was executed to save the bar of the statute and to fix the balance due, and must be taken in connection with all the facts alleged in the declaration, of which it is a part, and hence, under the averments of the declaration, converts what had been an open account into an account stated. Treating the action as one upon an account stated, the note was proper evidence of the account stated under the declaration, and itself ascertained the balance due. Guion v. Doherty, 43 Miss., 555, bottom of the page; 2 Greenleaf on Ev. (15th ed.), § 126, note 3. And, under the well-settled doctrines of this court on this subject, the wife’s estate was properly held liable. Cook v. Ligon, 54 Miss., 368; Guion v. Doherty, 43 Miss., 538; Clopton v. Matheny, 48 Miss., 285; Brooks v. Barkley, 72 Miss., 320.

It would, in a proper case, still be competent for the wife to show, treating the note as an account stated, that, though the balance ascertained by it to be due was correct as to amount, the balance was, in part, for articles of the class for which her estate was not chargeable. But the demurrer here admitted they were all for plantation supplies used on his farm. The judgment, however, is shown to be excessive to the extent of $1.95.

The judgment will therefore he reversed, and a judgment will he entered here for the true amxomvt.