Hamer v. Rigby

• Decision Date: 21 November 1887
• Citation: 65 Miss. 41,3 So. 137
• Court: Mississippi Supreme Court
• Parties: M. E. HAMER ET AL. v. THOMAS RIGBY

3 So. 137

65 Miss. 41

M. E. HAMER ET AL. v. THOMAS RIGBY

Supreme Court of Mississippi

November 21, 1887

APPEAL from the Circuit Court of Warren County, HON. RALPH NORTH Judge.

Thomas Rigby brought this action of assumpsit against M. E. Hamer and J. D. Mitchell.

The declaration was as follows: "For that whereas the said defendants heretofore, to wit, on March 2, 1882, made a promissory note in writing, bearing the day and date aforesaid, and thereby then and there promised to pay, nine months after the date thereof, to the said Thomas Rigby plaintiff, or order, the sum of fifteen hundred dollars, with ten per cent. interest until maturity, for value received and then and there delivered the said promissory note to said plaintiff (a copy of said note is herewith filed, marked Exhibit 'A'), by means whereof the said defendants then and there became liable to pay to the said plaintiff the said sum of money in the said promissory note specified according to the tenor and effect of the said promissory note, and being so liable, the said defendants promised," etc.

A copy of the note was annexed to the declaration as an exhibit, as follows:

"$ 1,500.

HURRICANCE March 2, 1883.

"Nine months after date we promise to pay to the order of Thomas Rigby, fifteen hundred dollars, with ten per cent. interest until maturity. Value received.

"J. D. MITCHEL,

"M. E. HAMER."

The defendants pleaded the general issue. The jury found for the plaintiffs the principal of the amount demanded, with ten per cent. interest from the date of the note until the verdict, October 26, 1886. Judgment was entered accordingly, with interest at ten per cent. per annum until paid. There was no bill of exceptions.

From this judgment the defendants appealed.

Reversed.

Lea & McKee, for the appellants.

It is submitted that the terms of the instrument limit the conventional rate of interest to the period of maturity. The note here is altogether different from that in Meaders v. Gray, 60 Miss. 400.

The legal rate governs the contract in the absence of a stipulated higher rate in writing. We have the written stipulation for a higher rate, but only for a fixed period, to wit, until maturity. Thereafter the legal rate attends. Such is the contract as declared on.

The Supreme Court of Wisconsin is in accord with this court on the doctrine announced in Meaders v. Gray. Spencer v. Maxfield, 16 Wis. 185; Pruyn v. City of Milwaukee, 18 Wis. 386.

In the later case of Spaulding et al. v. Lord, 19 Wis. 560, the instrument stipulated for a higher rate "until the time when the principal sum be payable."

The precise question then decided by the Wisconsin court is presented in this case, the language in the two instruments stipulating for interest being of exactly the same import. We do not perceive how any other satisfactory conclusion can be reached.

Miller, Smith & Hirsh, for the appellee.

This court will not reverse the judgment for any mistake in the sum of money awarded on the verdict of the jury. Section 1727, Code of 1880, expressly provides that judgments shall not be stayed or reversed after verdict for any mistake of the sum of money. This much on the assumption that there is a mistake.

But how can this court say there was any mistake on the part of the jury, and that there was no evidence before them to warrant a verdict such as was rendered by them?

Non constat; but that the note did not read with ten per cent interest after maturity, or that the makers of the note, after maturity, promised in writing that if the appellee would grant them time they would pay interest at ten per cent. after maturity, and that this writing was produced before the jury, and was in evidence...