56 Miss. 368 | Miss. | 1879
delivered the opinion of the court.
Under sect. 2279 of the Code, a creditor by open account is entitled to six per cent interest, as a legal incident of the debt after its matuiity. The case of Houston v. Crutcher et al., 31 Miss. 51, was decided under the act of 1822 (Hutch. Code, 643, sect. 57), which did not give interest on accounts; but it was remarked in the opinion in that case that the right to interest on debts by open account, “ on principles of justice, would seem to stand on as firm ground as the right to interest upon written contracts for the payment of money.” And by the Code of 1857 and that of 1871 this principle of justice was made positive law. The first instruction given for the defendant in this case is erroneous in authorizing the jury to allow or refuse interest, in its discretion. The jury should-have been told that open accounts bear interest, as a legal incident, from the time they are due.
The second instruction for the defendant is objectionable in the use of the words, “such a contract,” so as to suggest the necessity of a belief by the j ury that there must have been an express contract or promise by defendant, in order to make him liable for “commissions for advances.” The law on this subject is properly announced in the instructions for the plaintiffs.
Judgment reversed and a new trial awarded.
