5 Cal. 416 | Cal. | 1855
Murray, C. J., concurred.
The same rule must hold in regard to the taxation of costs. The party complaining must move, in the District Court, to retax, and thus obtain, distinctly, the judgment of the Court of original jurisdiction, upon the disputed items, before resort can be had to a higher tribunal.
The next assignment is, that the interest due on the notes up to the time of judgment, was added to the principal, to constitute the judgment, and interest then at the agreed rate given to run on the whole judgment, until paid; thus, as it is complained, compounding the interest.
Such is unquestionably the correct rule of proceeding. The theory of the law is not that the party recovers the particular note or chose in action, as is commonly imagined, but that he recovers damages for the non-performance of the contract, and in cases of failure to pay money due, it has always been held that the true measure of damages was the amount of money owing and the interest which was agreed upon. Thus, the judgment being ascertained, the statute steps in and regulates whether it shall bear interest, and at what rate. See Kohler v. Smith, 2 Cal., 597.
The other points-reliéd upon do not call for a separate consideration.
Judgment affirmed.