Finley v. Acock

• Decision Date: 31 January 1846
• Citation: 9 Mo. 841
• Parties: FINLEY v. ACOCK.
• Court: Missouri Supreme Court

9 Mo. 841

FINLEY

v.ACOCK.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO POLK CIRCUIT COURT.

HENDRICK, for Plaintiff. The grounds relied on by the plaintiff to reverse the judgment, are: 1. That there is a material variance between the note specified in the petition, and the note read in evidence. The note specified in the petition is described as one which draws interest at the rate of ten per cent. per annum, and the note read is for the payment of four hundred dollars with ten per cent. after date. The variance fatal, as the difference is descriptive of that which is material. 2. Because it was error for the Circuit Court to give interest upon interest.

MCBRIDE, J.

Finley was indebted to Acock in the sum of four hundred dollars, and executed his note due one day after date, “with ten per cent. from date,” dated 9th March, 1839, with Jo. L. Young, L. A. Williams and Jo. Able as his securities. At the same time, the better to secure the payment of said sum of money, he made to Acock a mortgage on the said tract of land upon which he resided, and which is described by its numbers, and which describes the note as above set out. Acock filed his petition in the Circuit Court of Polk county, praying a foreclosure of the mortgage and a sale of the mortgaged premises to satisfy his debt. The petition states that he is the owner of a note against Finley and others, as security for the sum, &c., due, &c., bearing ten per cent. interest per annum, dated, &c., and sets out the mortgage deed, which describes the note as payable one day after date, for the sum of $400, with ten per cent. from date,” &c., dated, &c.

The defendant pleaded four several pleas; the first denies the mortgage deed; the second denies the note; the third denies that the plaintiff was the owner of the note; and the fourth denies that the plaintiff owed the debt. Issues were framed on these pleas, and the cause was submitted to the court. The court found the several issues for the plaintiff, and gave judgment; the defendant then moved the court for a new trial, which having been overruled he excepted, and has brought the case here by writ of error.

Two points are made and relied on in this court to reverse the judgment of the Circuit Court. 1. There is a material variance between the note specified in the petition, and the note read in evidence. The note specified in the petition is described as one which draws interest at the rate of ten per cent. per annum, and the note read is for...