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MARCH 06, 1985




This is an open account suit by Motive Parts Warehouse, Inc. (MPW), an auto parts distributor, against D & H Auto Parts Co., Inc. (D&H), an auto parts store,

for $8,900.19. D&H denied that the account was itemized and filed a counter-affidavit specifying numerous objections to specific items but not all of the items included in the open account.

 At trial, D&H objected to the admission of any evidence in support of MPW's claim on the basis that the account was not itemized in accordance with Mississippi Code Annotated 13-1-141 (1972), and Mississippi Code Annotated 11-7-45 (1972). This objection was sustained and MPW then sought a voluntary dismissal, which the trial court refused. MPW then rested and the trial judge, on motion of D&H for dismissal, directed a verdict for D&H.

 On appeal, MPW alleges that the trial court

 1. Erred in sustaining D&H's objection to any further proof on the account on the basis that MPW's itemized account did not comply with the statutes; and

 2. Abused its discretion in denying MPW's motion for voluntary dismissal.

 MPW's amended complaint sought to recover payment for goods delivered to D&H between May 26, 1981, and November 10, 1981, for a total amount of $8,900.19, including a 1% service charge. D&H's answer included a counter-affidavit denying that the account was properly itemized in several respects. First, D&H points out that the account has an opening balance of $7,387.93 and that D&H did not owe MPW that amount, and that in any event that sum is not itemized. Second, D&H denied owing the service charges listed in the account from September, 1981, to August, 1982. Third, D&H objected to the item dated October 14, 1981, listed as factory fel-pro shipment for $2,365.18 on the ground that it never received such merchandise nor is the item itemized. Fourth, D&H lists five pages worth of tools and parts that it denies purchasing or receiving. The items to which D&H objects cover only a small portion of the 153 page sworn itemized account submitted by MPW.

 At trial, MPW called James Beckum as an adverse witness and, after preliminary questions, counsel for MPW asked him to describe the business dealings he had with MPW. Defense counsel requested a recess in chambers where he objected to any proof on the account. First, D&H alleged that the amended complaint did not conform with the order granting leave to amend because the amended complaint sought to include charges through November 10,

 1981, when the original complaint only alleged charges through July 24, 1981. Second, defense counsel objected that neither the opening balance of $7,387.93 nor the item listed as factory fel-pro shipment for $2,365.18 was itemized, so that defendant does not know what comprises those two items. D&H pointed out that MPW acknowledged that it had to start with a zero balance and come forward, and was given leave to amend, but did not do so. D&H contended that the account must begin with a zero balance, and that the two items alone amount to $9500, which was more than MPW requests in this suit.

 MPW conceded that it began with an opening balance of $7,387.93, but pointed out that further down on the same page of the statement there was a payment by check for $7,387.93. MPW contended that taking the opening balance together with the payment put the account at a zero balance. MPW stated that the only reason for including the $7,387.93 opening balance was to get to a zero balance and show the period from which payment had not been made.

 MPW contended that it was not suing for $7387.93 but only the charges accruing thereafter. Counsel for D&H contended that there was no way to show that the $7387.93 credit was in payment for the outstanding balance. D&H pointed out that the opening balance was added into the total figure, so that it was an unitemized charge that MPW was seeking to recover, in violation of the statute. MPW contended that if it did not begin with the outstanding balance then the account would show that MPW owed D&H money. The trial court acknowledged that the credit was the same amount as the opening balance, but declined to recognize that the credit applied to the opening balance and not to other items subsequently charged. Therefore, the trial court sustained D&H's objection.

 MPW asked for a voluntary dismissal, to which D&H objected on the ground that MPW had been dilatory during the duration of the law suit. MPW pointed out that there was no prejudice to D&H from a non-suit, but there would be great prejudice to MPW, since they would lose entirely their claim. The trial court refused to allow a voluntary non-suit. MPW offered into evidence for the record his sworn itemized account. MPW objected to the defendant's counter-affidavit for failure to include the invoice numbers along with the remaining ...

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