BEFORE ROY NOBLE LEE, HAWKINS AND SULLIVAN
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Bryant, Inc., (Bryant), appeals from a judgment of the circuit court of the First Judicial District of Jones County in favor of the defendant Victor Walters on a suit on open account.
Because the circuit judge erred in setting aside a default judgment entered in favor of Bryant against Walters, we reverse and render, reinstating the default judgment.
Bryant, Inc., is a Mississippi corporation engaged in the business of gasoline distributor, with principal offices in Hattiesburg. On May 22, 1984, it filed a complaint based upon open account against Victor Walters in the circuit court of the Second Judicial District of Jones County (Laurel), demanding judgment in the amount of $77,340.28 plus attorney fees of $19,335.00, for a total of $96,675.28. Noted in the complaint and attached as exhibits are an affidavit, a purported account, and a demand letter dated March 28, 1984, written pursuant to Miss. Code Ann. 11-53-81.
The affidavit asserts that the" statement "attached is a" true and correct statement of the claim and accounts "for $77,340.28, and that this sum is due from Victor Walters. The so-called" account, "however, is a listing of the dates, invoice numbers, and respective amounts, totaling $77,340.28. The final exhibit is the copy of the letter from plaintiff's attorney to Walters that pursuant to Miss. Code Ann. 11-53-81 demand was made that he pay $94,123.12, presently due and if he failed to do so in thirty days they would be entitled to attorney's fees.
Walters was personally served with summons on May 24, 1984. This summons required him to appear in court on the third Monday of August, or August 20, 1984. It also notified him that he was required to plead on or before the first day of the court term, or within thirty days of service of process, whichever was first in time, and failure to do so would permit judgment to be entered by default.
On June 27 Bryant's attorney filed a request for entry of default with the clerk pursuant to Rule 55(a) of the Mississippi Rules of Civil Procedure, with an attached affidavit. The clerk on that day entered a default against Walters. On June 28 the circuit judge entered default judgment against Walters for $77,340.28 plus attorney fees of $19,335.00 totaling $96,675.28.
On August 20 Walters filed with the court a motion to set aside the judgment. He assigned two grounds: that the summons was returnable for August 20, 1984, and he thought no answer was due until then, and second, the pleadings did not conform to Miss. Code Ann. 11-7-45 in that there was no copy of the account or bill of particulars filed with the complaint. The affidavit attached to this motion stated that Walters had a meritorious defense in that the debt sued on was" contracted to "Victor Walters Distributors, Inc., a" viable corporation "and not to Walters individually.
At the hearing on this motion Walters testified his meritorious defense was that they were trying to pay Mr. Bryant all they owed him.
Also at the hearing Walters testified that it was a corporation which did business with Bryant, and that he had never done business with Mr. Bryant as an individual; and the checks in payment of the motor fuel were from the corporation, not himself. He conceded, however, that all Bryant invoices were to Victor Walters, not the corporation.
Walters also conceded the debt was due, but by his corporation, not himself. At no time did he testify he had told Bryant he was representing the corporation, not himself, in making the purchases.
Walters retained counsel when his wages were garnisheed on the judgment entered against him.
On September 17, 1984, the circuit court entered an order setting aside the judgment. The court held that Walters was not entitled to set aside the judgment because
he thought an answer was not due until August 20, because the summons clearly stated an answer was due in thirty days at the most. The reason the court gave for setting the judgment aside was that there was not a proper itemized account attached to the complaint. The order gave Walters until September 24 to file an answer if the plaintiff did not amend its pleadings; otherwise not later than five days after filing of the amended complaint.
An amended complaint was filed on September 20. Attached to the complaint were copies of eight invoices for gasoline and diesel fuel. All show the fuel was sold to Victor Walters. None indicates a corporation.
On September 29 Walters answered with a general denial, followed by an affirmative defense that the debt sued on was" contracted to Victor Walters Distributors, Inc., "and not to" Victor Walters "individually. On October 2 Walters filed a motion for a change of venue to the First Judicial District of Jones County (Ellisville), which was sustained.
Although the answer denied the complaint, at trial it was stipulated the account was correct, and the only question was whether it was owed by the corporation or by Walters individually.
At trial Franklin D. Bryant, sole stockholder of Bryant, testified he had known Walters for several years, and pursuant to an agreement between the two he had begun selling Walters the motor fuel, which extended over a two-year period. Franklin Bryant always thought he was dealing with Walters individually, and only learned a few months prior to the discontinuance of the business relationship that Walters had a corporation. All invoices from Bryant, Inc., were to Victor Walters, none to any corporation. Mr. Bryant testified his corporation never sold anything to the Walters corporation.
Walters testified it was his corporation which bought motor fuel and it was corporate checks which paid for it. The checks on the purchase for which payment was made are headed" Victor Walters Distributors, Inc. "Just above the signature, however, there is printed" Victor Walters, Distributor. "
The issue submitted to the jury was whether or not the motor fuel was sold to the corporation or Walters individually.
The court gave the following requested defense
instruction, over the objection of ...