Washington v. First National Bank

64 Tex. 4 | Tex. | 1885

Willie, Chief Justice.

The variance between the indorsement pleaded and that found on the note introduced in evidence was very slight, and not at all material. The misdescription was not such as tended to mislead or surprise the adverse party, and hence it was properly disregarded by the court. McClelland v. Smith, 3 Tex., 210; Hays v. Samuels, 55 Tex., 560.

As to the verdict, it is sufficient to say that, if the court had directed the jury to find the exact verdict which they finally rendered in the cause, it would not have been error. There was no conflict in the testimony, and no other finding but the one finally adopted, or its equivalent, was authorized by the facts. The judge would have been authorized to direct the jury to return such a verdict, and it can be no objection to it that he had the proper verdict put in writing, no matter what agent he used for that purpose, if the jury afterwards adopted it as their own. This they did after due consultation, and there is no reason why their finding should be disturbed.

The charges, bills of exception and statement of facts were properly signed by the special judge who presided at the trial, and who was duly chosen for that purpose.

The judgment was entered substantially in compliance with article 3663, Revised Statutes, with perhaps some unimportant omissions. In the''entry of such a judgment our statute makes no distinction between a surety and a guarantor; nor between a case where the principal is a resident of the county where the judgment is rendered and one where he is a resident of a different county.

The attorneys’ fees provided for in the note sued on were incident to the main debt. In this respect they somewhat resembled the interest agreed upon in the note. Each was a percentage upon the debt, the one upon the principal, the other upon the principal and interest both that might be due at the time of rendering the judgment. The one continued to accumulate so long as the note was not paid, the other arose if judgment had to be rendered upon it.

Both were therefore sums the amount of which was contingent upon the payment or non-payment of the debt; and in case of suit both were to be incorporated in the judgment of the court.

As it is now the settled law of this state that the interest incorporated into a judgment, if above eight per cent., bears interest thereafter, and at the conventional rate, there can be no reason why the percentage allowed for attorneys’ fees should not bear interest at the same rate. The right to recover interest upon interest after judgment at a conventional rate does not rest upon the ground that the defendant has agreed that interest shall be computed in this way. Hence the fact that there is no agreement that the attorneys’ fees shall bear interest at a greater rate than eight per cent, cannot affect the question. Coles v. Kelsey, 13 Tex., 78; Mathews v. Hancock, 20 Tex., 7; Hagood v. Aikin, 57 Tex., 511; R. S., art. 2980. We think the court below properly allowed the whole judgment rendered to bear interest at twelve per cent., and there being no error in the judgment it is affirmed.

Affirmed.

[Opinion delivered April 11, 1885.]