4 Ark. 170 | Ark. | 1842
By the Court,
There is, manifestly, a variance between the obligation described in the declaration and the one given on oyer, in this, viz: that the former is described as being payable generally, and not at any particular place, while the latter is expressly made payable in the Branch of the State Bank of Arkansas, at Batesville, which, according to the judgment of this Court, in the case of Sumner vs. Ford et al., 3 Ark. 389, is fatal to the pleading. The demurrer was, therefore, well taken, and ought to have been sustained. The breach is alsó insufficient to warrant the judgment, as given, for interest, as has been repeatedly ruled by this Court.
The obligation would, in our opinion, bear interest from its date, by virtue of the express stipulation in the contract to pay interest; but as no breach of this part of the contract is alleged, no judgment could legally be given for it. The plea of non est factum, was properly stricken out, for it could have been entirely disregarded, as has been often ruled.
Judgment reversed.
