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MITCHELL McLAURIN, ET UX v. SMITH'S POULTRY & FARM SUPPLY

DECEMBER 17, 1986

MITCHELL McLAURIN, ET UX
v.
SMITH'S POULTRY & FARM SUPPLY, INC.



BEFORE HAWKINS, P.J., DAN LEE AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, involving the balance due on an open account, comes to the Court from the Circuit Court of Jones County, Mississippi. The trial judge directed a verdict for Smith's Poultry and Farm Supply, in the amount of $6,809.30, plus $1,000 in attorney's fees, finding the McLaurins' affidavit concerning the amount due insufficient, in that it failed to particularize in what manner the account was incorrect. The jury then awarded the McLaurins $2,500 on their counterclaim for damages resulting from the breach of warranty on the equipment at issue. We reverse.

In November, 1983, Mitchell and Patsy McLaurin purchased a Chore-time Model 2000 Chicken Feeder from Smith's Poultry and Farm Supply on an open account. It is undisputed that at the time of the purchase Smith told McLaurin that he guaranteed the product for one year and that no payment for the feeder was due until it worked properly.

 At trial, both sides testified to their version of the facts. Smith stated that he was repeatedly refused payment, though the machine worked as intended. The McLaurins, though, stated that they refused to tender payment in accord with their purchase agreement, when Smith failed to repair the feeder, despite numerous requests for service.

 The two sides also disagree as to whether the negotiated purchase price included "complete" installation. Specifically, Smith contends that Mr. McLaurin agreed to pay additional amounts at the time of installation, including, for example, the cost of rewiring the building

 to accommodate the new feeder, while the McLaurins argue that the quoted price was to represent their total investment for an operational feeder.

 After both sides had rested, the trial judge directed a verdict on behalf of Smith's Poultry and Farm Supply, finding that the McLaurins had failed to deny, specifically, the correctness of their account with Smith's store. That part of the McLaurins' affidavit which the judge found insufficient reads as follows:

 2. The statement of account filed in said cause by Smith's Poultry & Farm Supply, Inc. is incorrect in that it does not properly reflect charges to said account; the charges to the account are in excess of the agreed price for merchandise and equipment; the account does not show a set-off or credit for the value of a tiller; and the amount of the account due to the installation of feed lines is not now due.

 Though not cited, the trial judge obviously based his decision on Miss. Code Ann. 13-1-141 (Supp. 1986), which states,

 A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account, and that it is due from the party against whom it is charged. In any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due. However this shall not apply to accounts against decedents and suits against executors or administrators. A defendant desiring to use an open account as a set-off shall be entitled to the benefit of this section.

 I.

 The appellants contend that they denied with

 sufficient particularity that part of the open account which was incorrect, noting that their affidavit spoke both to the price dispute and to the purchase agreement, which did not require payment until the feeder functioned properly. Yet, due to the parties' agreement requiring payment only upon satisfactory use of the product, the McLaurins' failure to file any counter-affidavit, regardless of particularity, would not have entitled Smith's Poultry & Farm Supply to a judgment.

 In Gulf & S.I.R. Co. v. Kelly, 131 Miss. 133, 95 So. 131 (1923), this Court reversed a directed verdict, given when the appellant failed to file an affidavit contesting the amount due on an open account, where the trial judge had ignored the appellant's defense that ...


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