Mann v. Cross

9 Iowa 327

• Court: Supreme Court of Iowa
• Decided: October 18, 1859
• Status: Published

Opinion

WRIGHT, C. J.

Appellant relies upon two grounds to reverse this judgment.

The first is, that the testimony showed that tbe note and mortgage belonged to a third person, and that complainant was not the real party in interest. Granting that the testimony is properly before us, we need only say that it falls far short of sustaining appellant’s position. It consists of that of one witness, who details conversations had with complainant, “ tending,” in the language of the record, “ to prove that he (complainant) was acting in the collection of the claim, under and through the advice and direction of the original payee of the note.” Against the written evidence contained in the assignments found upon the note and mortgage, this testimony, giving it all the weight of clear and positive proof, cannot avail. Farwell v. Tyler, 5 Iowa 535; Allen v. Newbury, 8 Ib. 65.

The second ground is, that the judgment is for an amount greater than appears to be owing from the face of the note. Complainant confesses this error, and there is but one question to be'determined. The note draws ten per cent interest, “ the interest to be paid annually.” It seems that annual rests were made, and that interest at ten per cent was allowed on the annual interest. This was clearly erroneous, and is confessed to be so by complainant. Was he entitled to six per cent upon the interest annually due? We think he was. The respondent was under a legal obligation to pay this interest at the end of the year, it was a sum of money then due, without a contract fixing the rate of interest upon it, and for which he might have been sued. He was therefore bound to pay its legal value, which by our law, in the absence of a written agreement reserving more, is fixed at six cents cents on the hundred. Chapter 37, page 67, Laws 1853. And see 2 Par. on Cont. 428-31 and note e; 1 Am. Lead. C. 522 — 3; Pierce v. Rowe, 1 N. H. 179; Dodge v. Perkins, 9 Pick. 368.

On account of the error in the amount of interest allowed, the appellant recovers the cost of this appeal, and decree to be entered in this court in accordance with this opinion.