22 Tex. 108 | Tex. | 1858
The court charged the jury, that plaintiffs, Whitlock & Co., were not entitled to recover any interest on the notes sued on. This charge was calculated to control the verdict to the amount of twelve or fifteen hundred dollars ; and the question is, was it erroneous, under the circumstances. It was given, doubtless, on the assumed fact, that the notes were not made, or were not payable, in Texas. The petition showed that the two large notes, were made in “ New York,” and payable “ at “office of Commercial and Agricultural Bank of Texas, in New “Orleans, (in 1851 and 1852.) These words, “New York,” and “ New Orleans,” constitute a part of the notes, without any comment, in connection with them, explaining their locality. Without such averment, the court could not judicially know that they were placed beyond the limits of this State. (Cook & Cook v. Crawford, 4 Tex. Rep. 420.) According to the decision of this court, in the case of Able v. McMurray, 10 Tex. Rep. 350, these notes bore interest at whatever rate was payable at New Orleans, whether that place was in, or out, of the State of Texas ; and not. being alleged to have been out of the State, it must be taken to have been within it, as to the judicial determination of this case.
As to the small note, it is not so clear that the charge was erroneous. That, was made payable at the office of Messrs. Whitlock & Co., the plaintiffs, and the commencement of the petition reads as follows, to wit, “ The petition of John W. Whitlock & Co., a mercantile firm of the State and city of New York,
It is by some such process as this, only, that the fact can be assumed that these-notes, that were payable in New Orleans, bore interest according to the rate of interest in the State of New York. In ascertaining whether or not, an averment of a fact, necessary to support or qualify a cause of action, has been made, it is not required of a court to collate detached parcels of recitals in a petition, and construe them in a connection, and for a purpose, never intended by the pleader, in order
It is proper to remark, that the record shows abundantly, that the court was led into this error, by the conduct of both parties,, in the prosecution and defence of the cause. At a previous trial, a judgment had been rendered in favor of the plaintiffs, for the amount of the notes, with seven per cent, interest thereon, upon proof, it must be presumed, of the rate of interest of New York. Upon a motion for a new trial, other grounds of error were complained of, and not this. An appeal was taken to the Supreme Court, and this allowance of interest, at seven per cent., though apparent on the face of the judgment, was- not assigned as error. The case being sent back upon other points,, was tried on the same petition, and the same proof for plaintiffs; the defendant volunteering an admission that the rate of interest of the State of New York was seven per cent. The parties thus seemed to take for granted, what the court assumed, that the plaintiff must recover New York interest, if any. And it was obvious, that the plaintiff had not attempted to allege, that the rate of interest in New York was seven per cent., while it was not so obvious, without a critical examination, that
There is nothing in the charge, in the other branch of the case, pertaining to the re-convention, which requires any opin. ion ; and as the canse will be remanded for a new trial, it may be most appropriate, not to make any comment upon the evidence, as to its sufficiency.
Eor the error in the charge of the court, instructing the jury not to allow interest on the notes, the cause is reversed and remanded.
Eeversed and remanded.