Graves v. Farquhar

20 Tex. 455

Opinion

Roberts, J.

This case is settled by the principles announced in the case of Trabue et al. v. Stonum, decided at this Term.

The petition does not state what interest was stipulated, and claims in the prayer “ legal interest due thereon.” The defendant below, who was served with a copy of this petition, had no right to expect that the note produced in Court should bear any greater than legal interest.

The note produced, however, upon which the damages were assessed by the clerk, and which appears in the record, stipulates the conventional interest of ten per cent, per annum; and the judgment is rendered for such conventional interest.

To the extent of the difference between legal interest and said conventional interest, the judgment is erroneous ; because plaintiff below should not have recovered what he did not claim in his petition. Judgment reversed and reformed.

Reversed and reformed.