De France, C.
Several errors are assigned upon the transcript of record, two of which only are relied upon in the argument for a reversal. These two are the only assignments we need notice; and they are, in substance, that the judgment or decree is too small in amount, and that the costs should have been awarded against the plaintiff. As to the matter of costs the court below committed no error. Costs are usually awarded the successful party. The main object of the suit was to restrain the threatened sale, and to have an account taken *572of the amount due upon the note; and in this the plaintiff was successful. Was the judgment for too small an amount? We answer this in the negative. The court evidently allowed but simple interest, calculated according to the ordinary legal rule, in cases of partial payments, at a rate of two per cent, per month to January 1, 1877,— the contract rate, as evidenced by the note; and from that time to the date of the decree at the rate of fifteen per cent, per annum,— the rate mentioned in the indorsed agreement of January 1, 1877. Computed in this manner, the amount found due by the court is too large, to the extent of $5.38, as we calculate it. The contention by counsel for plaintiffs in error, if we correctly understand them, is that the amount named in the agreement indorsed on the note, under date of January 1, 1877, as the balance then due and unpaid upon said note, should have been taken by the court as the basis of calculation, and that interest should have been computed on that sum, as principal, from that date to the date of the decree, with allowances for intervening payments. It is insisted that this balance was arrived at by virtue of an accounting and settlement between the parties to the note, and, in pursuance of a previous understanding and agreement between them, that interest was to be paid quarterly, and compounded quarterly if not paid when due; that this agreement was, in legal effect, the same ás a new promissory note; and that the case, therefore, comes within the rule announced in some authorities, that compound interest, voluntarily paid by virtue of a prior bargain therefor, cannot be recovered back. We cannot agree with counsel in this position. The legal rate of interest in this state is ten per cent, per annum; but the statute provides that a higher rate may be lawful, and enforced, if stipulated for in an instrument of writing calling for the payment of money. If not thus stipulated for in the writing itself, the recovery of a higher rate than the legal rate cannot be enforced. The *573stipulation for interest at the rate of two per cent, per month in the promissory note in this case was lawful, and may therefore be enforced; but the note calls for simple interest only, and makes no provision for its payment before the time fixed for the payment of the principal. It cannot be said, therefore, that there was a prior bargain for compound interest. In addition to this, the plaintiff testifies that he made no agreement, aside from the note, to pay interest quarterly, or to pay compound interest, and we think the weight of the evidence upon these questions is on the side of the plaintiff. The defendant jseemed to be in no great haste for the payment of the note. It had been allowed to run for more than three years after maturity without any express agreement for extension of time, and no steps had been taken to foreclose' the trust-deed, or to otherwise enforce its payment. The proposition to extend the time of payment for a definite period, and to reduce the rate of interest, came from the defendant. The reduction in the rate of interest was no doubt one of the chief inducements to the plaintiff to sign the agreement of January 1, 1877. He denies in his testimony a knowledge of the fact, at the time of signing said agreement, that the balance of $1,652 named therein was arrived at by compounding the interest quarterly; and says that he relied upon the defendant’s representation, made at the time, that such balance was the actual and correct balance. The difference between that and the actual balance, as we calculate it, was $483.25. This difference is against the plaintiff, and is composed wholly of compound interest, which he was under no legal, or even moral, obligation to- pay. To enforce that agreement in this particular, then, would be to largely increase the rate of interest, instead of reducing it. There are exceptional cases, in which this is not to be classed, where courts allow interest' upon interest. Filmore v. Reithman, 6 Colo. 120" court="Colo." date_filed="1881-12-15" href="https://app.midpage.ai/document/filmore-v-reithman-6561050?utm_source=webapp" opinion_id="6561050">6 Colo. 120; Manufacturing Co. v. McAllister, id. 261; *5743 Pars. Cont. 151-153, and cases cited. This is an equitable action, in which the respective rights of the parties are to be adjusted upon equitable principles. Considering the issues and the facts as presented, we are of the opinion that the court committed no error of which the plaintiffs in error may complain, in respect to the amount of its judgment against the plaintiff. The defendant in error has assigned certain cross-errors, which relate chiefly to the refusal of the court to allow the claim made by him for services rendered; but as no exception was preserved by him to the final decree, or to any order or ruling of the court at the hearing, we cannot consider such cross-errors. As an additional reason for not considering the same, it may be said that, at the time the writ of error herein was sued out, the code of procedure did not provide for the filing of cross-errors. The judgment should be affirmed.
Stallcup and Rising, CO., concur.
Per Curiam.
For the reasons assigned in the foregoing opinion the judgment of the court below is affirmed.
Affirmed.