Hyperlawhypertext legal databasebeta Day v. Thomas 25 Del. 488

← Cases

Day v. Thomas

25 Del. 488 2 Boyce 488 Court Superior Court, Kent County Decision date 1911-10-18 Docket No. 35 English

Delivered by Pennewill, C. J.

Contents

Majority

p. 488
Leonard O. Day, Manford O. Day, trading under the firm name and style of Day and Company vs. Frank A. Thomas.

Headnote

Account, Action on — Right of Action — Money Advanced or Loaned.
Money advanced or loaned is not properly chargeable in a book account of original entries, and where a book account, annexed to and filed with an affidavit, shows that it consists principally of charges for money advanced to the defendant, judgment on the account will be refused on motion, notwithstanding the affidavit.
(October 18, 1911.)
Pennewill, C. J., and Conrad, J., sitting.
Richard R. Kenney for plaintiff.
Thomas C. Frame, Jr., for defendant.
Superior Court, Kent County
October Term, 1911.
Summons Case
(No. 35
October Term, 1911).
Motion that judgment be refused notwithstanding affidavit of demand, the claim sued upon being for money loaned or advanced, which is not properly chargeable in a book of original entries. Judgment was refused.

delivering the opinion of the court:

In the above-stated case a motion has been made that judgment be refused notwithstanding the affidavit filed by the plaintiff.

It appears from an examination of the alleged book account annexed to, and filed with, the affidavit, that the said account consists principally of charges for moneys advanced to the defendant.

We gather from the affidavit, and account, that the plaintiff advanced to the defendant, from time to timé, sums of money with which the defendant was to buy peaches for the plaintiff; that the aggregate amount so advanced exceeded the aggregate amount expended by the defendant, and that the excess is due and owing from the defendant to the plaintiff.

It is well settled that money advanced, or loaned, is not properly chargeable in a book account of original entries, ,and we, therefore, sustain the motion of the defendant that judgment be refused notwithstanding the affidavit filed.