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L. C. WALKER v. CLEVELAND LUMBER COMPANY

SEPTEMBER 09, 1987

L. C. WALKER
v.
CLEVELAND LUMBER COMPANY, INC.



BEFORE ROY NOBLE LEE, P.J., SULLIVAN AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

L. C. Walker appeals the order of the Tallahatchie County Circuit Court wherein the trial court granted plaintiff, Cleveland Lumber Company, Inc.'s motion for summary judgment pursuant to Rule 56 of the Mississippi Rules of Civil Procedure, and entered judgment on the pleadings against the defendant, Walker, in the amount of $5,273.64, plus $750.00 attorney's fees, together with all costs and interest.

As error, Walker claims the lower court should not have granted plaintiff's motion for summary judgment in an open account action in which he filed a general

 denial, a counter-affidavit in support thereof, and an affirmative defense that no account existed between the parties.

 This Court has held that a general denial in and of itself is sufficient in a cause of action such as the case at bar to put into issue the defendant's liability. McLaurin v. Smith's Poultry & Farm Supply, 499 So.2d 1361 (Miss. 1986). Further, as we have said on numerous occasions heretofore, the requirement for an affidavit as to the accuracy of an account is a rule of evidence only. See, e.g., Sanders & Alexander, Inc. v. Jones, 221 Miss. 143, 72 So.2d 240 (1954); Britton v. Magnolia State Casket & Supply Co., 210 Miss. 264, 49 So.2d 404 (1950); Parker v. Thornton, 206 Miss. 662, 40 50.2d 538 (1947); Aaron v. Podesta, 60 Miss. 82 (1882). A counter-affidavit is necessary only if a debt is admitted but is alleged to be inaccurate. The affidavit should point out the inaccuracies therein, and has no relation to the general denial of the debt. Thus, the trial judge should not have granted plaintiff's motion for summary judgment where defendant had met the minimum standards under pleadings in an open account action as required by our law.

 Accordingly, we reverse the decision of the lower court and remand this cause of action for further proceedings below.

 REVERSED AND REMANDED.

 WALKER, C.J., ROY NOBLE LEE, P.J., HAWKINS, P.J., DAN LEE, and ANDERSON, JJ., CONCUR; ROBERTSON, PRATHER and SULLIVAN, JJ. CONCUR BY SEPARATE OPINION.

 ROBERTSON, JUSTICE, CONCURRING:

 I concur that the judgment entered by the Circuit Court must be reversed and this case remanded for further proceedings. Because I find the majority opinion confusing and incomplete, I write separately.

 My point of beginning is the ruling of the Circuit Court. What happened is this: A pre-trial hearing was held on Defendant's motion in limine. At that hearing Plaintiff, Cleveland Lumber Company, Inc., orally *fn1 moved for summary judgment. The Circuit Court converted the motion into one for judgment on the pleadings *fn2 and granted judgment in favor of the Plaintiff. The basis for the Circuit Court's ruling was

 its conclusion that Defendant, L. C. Walker, was precluded from presenting at trial his only defense, to-wit: that the relationship between Cleveland Lumber and himself was in the nature of an oral contract, not an open account. The Circuit Court grounded this conclusion in Walker's failure to plead this "defense." More generally, the Circuit Court held that "oral contract" was an affirmative defense which had to be pleaded if it were to be asserted and relied upon at trial, citing Rule 8(c), Miss.R.Civ.P. The operative language of Walker's Answer is that

 By way of affirmative defense, Defendant would show that he has not purchased anything from Plaintiff on open account, or otherwise.

 The Circuit Court held that this is not sufficient to comply with Rule 8(c) and put Cleveland Lumber on notice that Walker would assert at trial that the relationship ...


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