D. F. QUILLEN & SONS, INC., a corporation of the State of Delaware, Plaintiff,
Thomas E. AYERS and Sidney Layton Ayers, Defendants.
[54 Del. 502] Paul R. Reed, Georgetown, for plaintiff.
A. Dean Betts (of Ennis & Betts), Georgetown, for defendants.
Plaintiff brought this action alleging that defendants owe it $2,970.76 for labor, materials and goods sold and delivered to the defendants in the construction of defendants' theater in Bridgeville. Attached to the complaint was a bill of particulars and affidavit of demand.
The form of the complaint indicates that plaintiff was suing for the recovery of a book account. Under the provisions of 10 Del.C. § 3901 plaintiff is entitled to a default judgment unless an affidavit of defense is filed.
Defendants filed an answer denying liability and alleging that plaintiff breached its contract by failing to supervise the job. Defendants did not file an affidavit of defense.
Plaintiff then moved for judgment by default for failure to file an affidavit of defense as required by 10 Del.C. § 3901. [54 Del. 503] Defendants resist the motion on the ground that plaintiff's action is on a special contract and not on a book account. If defendants' position is correct, then they were under no obligation to file an affidavit of defense.
The facts on the merits of the case and the facts raised by the motion for default judgment were presented at a single hearing. This opinion deals with both issues.
At the hearing plaintiff sought to prove that it had supplied materials and labor for construction of the theater for defendants under an oral agreement or understanding whereby plaintiff was to be paid for time and material plus ten percent. I find from the evidence that although plaintiff performed its part of the bargain, the last billing under such agreement remains unpaid. Plaintiff's case depends largely, but not entirely, on various business records including books of original entries made at the time of the construction.
Defendants maintain that such records are inadmissible because the agreement between the parties is a 'special contract' and does not give rise to an action based on an account or on the 'common counts'. Under the old practice books of original
entry were admissible to prove accounts due but not to prove special contracts.
Defendants' technical position finds some support in Woolley on Delaware Practice (1906) §§ 1465-1468. See also Edsall v. Rockland Paper Co. 8 W. W. Harr. 495, 194 A. 115 (Superior Ct.1937) which adopts defendants' viewpoint and contains the most recent study of the original entry rules as they were interpreted prior to the adoption of the uniform statute on business records.
At the time the Edsall case was decided the only statute on the admissibility of books of original entry laid down the rules still found in 10 Del.C. § 4309, which provides as follows:
[54 Del. 504] '(a) A book of original entries, regularly and fairly kept, shall, together with the oath or affirmation of the plaintiff, be admitted in evidence to charge the defendant with the sums therein contained for goods sold and delivered, and other matters properly chargeable in an account. Cash items are not properly so chargeable. Such book may, in like manner, be ...