{
  "id": 8620418,
  "name": "ENDICOTT-JOHNSON CORPORATION v. JENNIE B. SCHOCHET and S. I. BLOMBERG",
  "name_abbreviation": "Endicott-Johnson Corp. v. Schochet",
  "decision_date": "1930-06-06",
  "docket_number": "",
  "first_page": "769",
  "last_page": "771",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T19:53:28.956258+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ENDICOTT-JOHNSON CORPORATION v. JENNIE B. SCHOCHET and S. I. BLOMBERG."
    ],
    "opinions": [
      {
        "text": "BROGDEN, J.\nThe trial judge excluded the verified statement offered by plaintiff apparently upon the theory that it was not in the proper form. C. S., 1789, was'enacted for the purpose of facilitating the proof of claims specified in the statute. As an itemized verified statement of account is only an ex parte statement, the courts have held that the statute should be strictly construed. Nall v. Kelly, 169 N. C., 717, 86 S. E., 627. Furthermore, the person who verifies the account is to be treated as a witness pro tanto, and hence the verification must be made by a person who would be a competent witness if called at the trial to testify with respect to the transaction.\nThe original record in Worthington v. Jolly, 174 N. C., 266, 93 S. E., 776, discloses an affidavit as follows: \u201cT. J. Worthington, being duly sworn, says that he is one of the plaintiffs, and that the foregoing account against Titus Jolly is correct and just, and that the same was the goods delivered to Edgar Summerell upon the order of Titus Jolly, and that he is now due $90.59 upon said account.\u201d The said affidavit was approved by this Court.\nThe affidavit in the case at bar is almost in the identical language of the one in Lloyd v. Poythress, 185 N. C., 180, 104 S. E., 166. There were two dissenting opinions in that case, but no attack was made upon the regularity of the affidavit. Indeed, an examination of all the opinions filed would indicate that the evidence was in proper form, but that the person who made the affidavit- was not otherwise qualified to testify concerning the transaction.\nThe defendants rely upon Nall v. Kelly, supra. While there are certain expressions in that case that apparently support the defendants\u2019 contention, an examination of the opinion discloses that the competency as a witness, of the person making the affidavit was the real question in the case. Furthermore, there was nothing to indicate that the plaintiff in the case had any personal knowledge of the transaction. In the case at bar the person making the affidavit declares therein \u201cthat he is familiar with the books and business of said Endicott-Johnson Corporation.\u201d Hence it cannot be said as a matter of law that the affiant had no personal knowledge of the transaction.\nWe are of the opinion and so hold, that the verified itemized statement was admissible in evidence.\nNew trial.",
        "type": "majority",
        "author": "BROGDEN, J."
      }
    ],
    "attorneys": [
      "Jos. W. Little and T. W. IApscomb for plaintiff.",
      "Bernard, Williams & Wright for defendants."
    ],
    "corrections": "",
    "head_matter": "ENDICOTT-JOHNSON CORPORATION v. JENNIE B. SCHOCHET and S. I. BLOMBERG.\n(Filed 6 June, 1930.)\nAccount, Action on, C a \u2014 Itemized statement sworn to by plaintiff\u2019s treasurer held admissible under C. S., 1789.\nAn itemized, verified statement of an account is an ew parte statement and the statute governing its admission, C. S., 1789, must be strictly complied with, and the person who verifies the account, being treated as a witness pro tanto must be competent to testify as a witness in respect to the account if called upon at the trial, but where an itemized statement of account offered at the trial is verified by the treasurer of the plaintiff corporation who declares in his affidavit that \u201che is familiar with the books and business\u201d of the plaintiff, it cannot be held as a matter of law that the affiant had no personal knowledge of the transaction, and the exclusion of the statement by the trial' court will be held for reversible error. Nall v. Kelly, 169 N. C., 717, cited and distinguished.\nCivil aotioN, before MacRae, Special Judge, at January Term, 1930, of BUNCOMBE.\nThe plaintiff instituted an action against the defendants to recover the sum of $2,349.58 for goods sold and delivered. The defendants had purchased goods, wares and merchandise from time to time on open account and there was a balance due of $2,349.58. The defendants contended that the goods were delivered to Schochet and that the defendant Blomberg had guaranteed one invoice and only one.\nThe plaintiff offered in evidence a verified itemized statement of the account in the following language: \u201cBe is remembered that on 18 August, 1929, before me, Harold A. Schaff, a notary public in and for the said county of Broome, personally came Bruce L. Babcock, wbo being by me duly sworn, deposes and says:\nThat be resides in the city of Binghamton, Broome County, New York, and is the treasurer of Endicott-Johnson Corporation, a corporation organized and existing under the laws of the State of New York, having its principal office and place of business in said village of Endi-cott, and is duly authorized to make this affidavit; that he is familiar with the books and business of said Endicott-Johnson Corporation; that the attached statement of account against S. I. Blomberg and Mrs. Jennie B. Sehochet is just and correct; that the goods and merchandise represented by the items therein contained were respectively sold and delivered to the said person, firm or corporation, at his, their, its special instance and request, and upon the dates therein stated; that no payments have been made thereon and there are no offsets thereto except as in said account stated; that the balance thereof amounting to $2,349.58 is justly due and owing to said Endicott-Johnson Corporation besides interest thereon from .\u201d\nAttached to the affidavit was a statement of account.\nThe defendant objected to the introduction of the itemized statement and the court excluded it.\nTwo issues were submitted to the jury as follows:\n1. \u201cIs the defendant, Jennie B. Schochet, indebted to the pl\u00e1intiff? If so, in what amount?\u201d\n2. \u201cIs the defendant, S. I. Blomberg, indebted to the plaintiff? If so, in what amount?\u201d\nThe jury answered the first issue \u201c$2,349.58,\u201d and the second issue \u201cNo.\u201d\nFrom the judgment upon the verdict plaintiff appealed.\nJos. W. Little and T. W. IApscomb for plaintiff.\nBernard, Williams & Wright for defendants."
  },
  "file_name": "0769-01",
  "first_page_order": 839,
  "last_page_order": 841
}