Sawyer & Austin Lumber Co. v. Champlain Lumber Co.

84 P. 1093 | Okla. | 1905

STATEMENT OF FACTS. On the 10th day of February, 1903, The Sawyer and Austin Lumber Company, a foreign corporation, commenced its action in the district court of Garfield county against the Champlain Lumber Company, a domestic corporation, to recover a balance of $1293.92 claimed on account for lumber sold and delivered by the plaintiff to the defendant. A statement of the account sued on was attached to the petition, and to the account was attached an affidavit of the book-keeper of the plaintiff corporation, the material averments of which are as follows:

"That the invoices hereto attached show shipments of Lumber and material, as therein set out, by said Sawyer Austin Lumber Company to the said Champlain Lumber Company; that there is now due the said Sawyer Lumber Company from said Champlain Lumber Company after allowing all just credits and setoffs, the sum of $1293.92 as shown by the books and accounts of the said Sawyer and Austin Lumber Company, as this affiant is informed and verily and truly believes."

To the petition the defendant filed an answer setting up three defenses, consisting: First, of a general denial; second; non-compliance with the law regulating foreign corporations doing business in the Territory; and third, counter-claim for damages arising out of alleged failure to comply with the contract to deliver an additional order for lumber. The plaintiff demurred to the answer, which was overruled, and exceptions saved. The cause was tried to the court, and finding made and judgment rendered in favor of the plaintiff for the sum of $374.45, the difference between the sum sued for by plaintiff and the amount of damages allowed defendant on its cross-petition. The plaintiff appealed.

Opinion of the court by But two alleged errors are presented in the brief of plaintiff in error. It is first contended that the court erred in overruling the demurrer to the answer, for the reason that the petition was upon a verified account, and the answer not being verified was insufficient. Section 4312, Wilson's Statutes 1903, sec. 114 civil code, provides:

"In all actions, allegations * * * of the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent, or attorney."

We have examined the petition carefully, and we fail to find any allegation of the correctness of the verified account, nor does the affiant in the verification state that the itemized account is true and correct. Both the petition and verification failed to bring the plaintiff within the rule contended for. There was no error in overruling the demurrer for another reason. The defendant in his answer admitted the correctness of the account sued on by plaintiff, and set up by way of counter claim a demand for damages. This answer was not required to be verified. Where the correctness of a verified account is not questioned, but some affirmative defense is pleaded, no verification to the answer is required. Johnson et al. v.Johnson, 24 P. 1098; Pattie v. Wilson, 25 Kan. 329;Washington v. Hobart, 17 Kan. 277.

The next contention is that the evidence is insufficient to support the finding on the cross petition, — that it does not show that the plaintiff ever entered into any contract to duplicate the defendant's order for lumber, and hence no damages could be allowed for breach of such alleged agreement.

This question requires an examination of the evidence. The case purports to contain the evidence, but the record contains no recital or other statement that it contains all the evidence, introduced in the trial of the cause. There is a certificate of counsel that the case contains all the evidence, also a certificate of the stenographer that his transcript contains all the evidence, but neither of these certificates are authorized or recognized. The case itself must contain the positive averment by way of recital that it does contain all the evidence submitted or introduced on the trial of the cause, and in the absence of such recital this court will not review any question depending upon the facts for its determination. This question has been repeatedly decided. Frame v. Ryel,14 Okla. 536; Board of Washita County v. Hubble, 8 Okla. 169; B.K. S.W. Ry. Co. v. Grimes, 36 Kan. 241; Ryen v. Madden, 26 P. 680; Pelton v. Bauer, 35 P. 918; Eddy v. Weaver,32 Kan. 540; Hill v. Bank, 42 Kan. 364.

We find no reversible error in the record. The judgment of the district court of Garfield county is affirmed, at the costs of the plaintiff in error.

Pancoast, J., who presided in the court below, not sitting; Burwell, J., who ruled on the demurrer, not sitting; all the other Justices concurring.