Cecil v. Hicks

• Citation: 70 Va. 1
• Court: Supreme Court of Virginia
• Decision Date: 13 September 1877
• Parties: CECIL & PERRY v. HICKS.

70 Va. 1

CECIL & PERRY v. HICKS.

Supreme Court of Appeals of Virginia.

September 13, 1877

Absent, Anderson, J.

I. C and P executed their single bill, dated October 18th, 1871 whereby they promised, " six months after date to pay to H or order the sum of seven thousand dollars, with interest at the rate of 12 per centum per annum from date" --HELD:

1. The contract for interest at the rate of 12 per cent. per annum was legal under the constitutional provision in force at the time of the contract, and is not affected by the subsequent abolition of that provision.

2. The obligors in the bond are bound to pay interest after the rate of 12 per cent. per annum, not only up to the maturity of the bond, but after maturity and until the payment thereof.

This case was heard at Wytheville, and decided at Staunton. The case is as follows:

On the 18th of October, 1871, a single bill obligatory was executed by the plaintiffs in error, Cecil & Perry, to the defendant in error, Hicks, in the words and figures following, to-wit:

" ($7,000). Six months after date, we promise and bind ourselves, our heirs, & c., to pay to John F. Hicks or order, the sum of seven thousand dollars ($7,000), with interest at the rate of 12 per centum per annum, from date. Value received. Witness our hands and seals October 18th, 1871.

W. P CECIL, [ Seal. ]

W. E PERRY, [ Seal. ]"

On the 18th of July, 1875, an action of debt was brought on said bill, by said Hicks, against said Cecil & Perry, in the circuit court of Tazewell county, and judgment by default was accordingly entered thereon in said court on the 11th of September, 1875, for the said principal sum of $7,000, with interest thereon at the rate of 12 per centum per annum from the 18th day of October, 1871, till paid, and cost of suit, subject to certain credits endorsed on said bill.

On the 26th of April, 1877, the said Cecil & Perry notified the said Hicks, that " whereas there is error in said judgment in this, that judgment should have been rendered for interest on said bond at the rate of 12 per cent. per annum, only to the date of the maturity of said bond, and after that for interest at the rate of 6 per centum per annum till paid, that being the rate of interest allowed by law," and, therefore, that on the first day of the next term of said court, they would move said court to reverse said judgment and to give such judgment as ought to have been given.

Accordingly, on the 29th of May, 1877, the said motion was made; but the court being of opinion that there was no error in the judgment complained of, for which it ought to be reversed, gave judgment that the said motion should be dismissed, and for the defendants' costs.

To the said judgment the plaintiff in the motion excepted, and tendered a bill of exceptions, which was signed and sealed by the court and made a part of the record; from which it appears that the only evidence introduced in support of the motion was, a copy of the record of the said action on the said bill; and they, thereupon, applied to a judge of this court for a writ of error and supersedeas; which were accordingly awarded.

Stras and Henry, for the appellants.

J. Stras, Sr., and S. C. Graham, for the appellee.

OPINION

MONCURE, P.

After stating the case he proceeded:

The only question presented by the case to this court for decision is: Did the circuit court err in rendering judgment for interest on the said principal sum at the rate of 12 per cent. per annum from the date of said bill till payment; instead of interest thereon at that rate from said date till the maturity of said bill, and at the rate of 6 per cent. per annum from such maturity until payment?

It is admitted by the obligors that they are bound to pay interest as well after as before the maturity of the bill, and until payment; but they contend that the rate at which they are liable, after the maturity of the bill, is not the contract rate of 12 per centum per annum, but the general rate prescribed by law of 6 per centum per annum. They admit that if the contract had expressly stipulated for the payment of interest at the rate of 12 per centum per annum, until payment, it would have been recoverable accordingly, because they admit, very properly, that such a contract would, at the date of said bill, have been lawful. But they contend, that while the contract is express for the payment of interest at the rate of 12 per cent. per annum from the date to the maturity of the bill, it is neither express nor implied for the payment of interest at that rate after such maturity; and, therefore, the general rate prescribed by law, of 6 per centum per annum, then applies to the case. Let us now inquire whether this view of the law be correct or not.

There has yet been no express decision of the question by this court. But principles have recently been decided by this court in regard to the subject of interest which go very far towards the decision of the question, and seem to lead to that as a legitimate result. Roberts' adm'r v. Cocke, & c.; Murphy v. Gaskin's adm'r, 28 Gratt. 207; Cecil v. Barrett, & c.; Linkous, assignee, v. Shafer; Garnand v. Childress; Kent's adm'r v. Kent's adm'r, recently decided, but not yet reported; except that the first two of the said cases have been reported in the Virginia Law Journal for March, 1877, pp. 168-178. See also Chapman's adm'rs v. Shepherd's adm'r, & c., 24 Gratt. 377, and Crenshaw v. Seigfried, Id. 272, referred to in the opinion of the court in the said first two cases above cited.

In that opinion, which was delivered by Judge Burks,...