Billingsly v. Cahoon

• Decision Date: 08 December 1855
• Citation: 7 Ind. 147
• Parties: Billingsly v. Cahoon and Another
• Court: Indiana Supreme Court

7 Ind. 147

Billingsly v. Cahoon and Another

Supreme Court of Indiana

December 8, 1855

From the Dearborn Circuit Court.

The sum of 29 dollars and 8 cents having been remitted, as of the date of the judgment, the residue of the judgment is affirmed at the costs of the appellees.

D. S. Major and A. Brower, for appellant.

W. S. Holman, E. Dumont and O. B. Torbet, for appellee.

OPINION

Gookins, J.

This action was brought by Cahoon and Perrin against Billingsly, as indorser of the following note:

"$ 2,890.41. Cincinnati, April 30, 1853. Ninety days after date, I promise to pay to the order of John Billingsly, at the Lafayette bank in this city, twenty-eight hundred and ninety dollars and forty-one cents, for value received. If not paid at maturity, to bear interest at ten per cent. per annum until paid; interest payable annually, without any relief whatever from valuation or appraisement laws. [Signed,] Thomas W. Pate. [Indorsed,] John Billingsly."

The complaint sets out the statutes of Ohio, making promissory notes negotiable, and allowing ten per cent. interest, &c.

Judgment was rendered on the 26th day of May, 1854, upon this note, for 3,158 dollars and 75 cents. The appellant informs us that the amount was found by computing interest from the date of the note, deducting a credit of 41 dollars and 50 cents, which the record does not show; and as the finding of the Court is stated to be for the amount of the note and interest, we presume such was the basis of the calculation. The giving of ten per cent. from the date of the note was erroneous. To have given it that effect, it should have stipulated that on failure of payment at maturity, it should draw interest from date. In the absence of such a stipulation, it drew interest from maturity only. We can not notice the credit not shown by the record, and the judgment appears to be too large by 29 dollars and 8 cents, which the appellee may remit in this Court, as of the date of the judgment below. If this is done, the judgment below will be affirmed for the residue; otherwise it will be reversed.

The sum of 29 dollars and 8 cents having been remitted, as of the date of the judgment below, the residue of the judgment is affirmed at the costs of the appellees.