McClure v. Cole

6 Blackf. 290

• Court: Indiana Supreme Court
• Decided: November 15, 1842
• Status: Published

Opinion

Dewey, J.

Debt upon a writing obligatory for the payment of a specific sum of money at a specified time. The defendants craved oyer of the instrument declared on. It was a covenant corresponding with that set out in the declaration, with the following note subjoined: “The above to draw ten per cent, interest from date and until due.” The defendants demurred generally to the declaration. ' The Court Overruled the demurrer, and rendered judgment for the plaintiff.

It is contended there is a variance, because the declaration omits the stipulation respecting interest. Admitting the subjoined note respecting the interest to be a part of the original contract, this objection is not well taken. The demand of principal and interest, upon a covenant to pay a specific sum with interest, is divisible. Verney v. Iddings, 2 Chitt. R., 234. If the plaintiff chooses to demand the principal only, he has a right to do so; and he is bound to set out in his declaration no more of the covenant than that part on which he relies. The declaration in this cause describes the contract correctly as far as it goes.

Per Curiam.—The judgment is affirmed, with six per cent. damages and costs.