Gulf & Ship Island R. v. Wells Lumber Co.

Citations

• 111 Miss. 768
• 72 So. 194

Syllabus

<p>1. Account. Action on. Form of action. Statute. Negligence. Recovery. Proof. Tort or contract. Waiver of tort.</p> <p>Code 1906, section 1978, providing that one suing upon an open account may%iake affidavit to its correctness and that it is due, and shall thereupon be entitled to judgment unless defendant make affidavit that the account is not correct, in which case the plaintiff’s affidavit shall entitle him to judgment only for such part of the account as is not denied, etc., has no application to actions ex delicto based upon defendant’s negligence.</p> <p>2. Same.</p> <p>In such case plaintiff could not recover without proving damage by the negligent act of the defendant and also proving the amount that he has suffered.</p> <p>3. Same.</p> <p>While technical forms of pleading are no longer regarded by our courts, the essential difference between actions ex contractu and actions ex delicto cannot be disregarded.</p>