DuPONT, J.,
delivered the opinion of the Court.
This was a suit instituted in the Circuit Court of Jackson county, by the appellee against the appellant, for the recovery of the amount due for a bill of lumber delivered at various times during the year 1855. The suit was commenced on the 21st day of April, 1857, and the declaration contained the single indebitatus count for goods sold and delivered, and the issue was joined upon the plea of non assumpsit. The evidence adduced upon the trial established the fact, that the price of the lumber, if paid for within the current year, was to be eight dollars per thousand, but if not paid for by the close of the year, then it was to be ten dollars per thousand. Upon this evidence, the Court charged the jury as follows : “ If the jury shall find for the plaintiff, they will allow him interest upon the amount which they may find to be due him, from the time [167]*167the money was due and payable by the contract, otherwise they will allow interest from the time of the institution of the suit.”
Under this charge of the Court, the jury found a verdict for the plaintiff, for the whole amount of the account, estimating the price of the lumber at ten dollars per thousand, and gave interest thereon from the first day of January, 1856;
The appellant excepted to the charge of the Court, and this constitutes the first error assiged. In support of this exception the counsel for the appellant contended, first, that there being no evidence of any contract for the payment of interest, the charge was irrelevant and calculated to mislead the jury; and secondly, that the demand sued upon being an open account and unliquidated, the law did not authorize the giving of interest.
With respect to the first point, it is undoubtedly true that the charge of the Court ought always to be relevant and strictly confined to the evidence adduced upon the trial. The correctness of this position is too obvious to need the enforcement of argument. But it is not every irrelevant instruction that will afford a ground for error. The instruction to be erroneous, must be not only irrelevant, but likely to mislead the jury in the formation of their verdict. We do not think that this instruction was calculated to have that effect, although the first clause of it may in some measure partake of the character of an abstract proposition, considered in reference to the evidence that was actually submitted to the jury. With respect to the second point, it is equally true, that as a general rule, the law did not anciently allow interest to be given upon an open account, or an unliquidated demand, of any character. But this rule was not universal, nor was the practice of the English Courts séttled or uniform upon this sub[168]*168ject, prior to the enactment of the 3 & 4 William 4th. It is indeed truly extraordinary that a question of such frequent occurrence should ever have remained for any length of time unsettled. So contradictory were the English authorities down to the time of Mr. Campbell, that in a noteto D’Havilland vs. Bowerbank, (1 Camp. R. 53,) he is made to say: “ It would fortunately be very difficult to fix upon another point of English law on which the authorities are so little in harmony with each other.” We may reasonably presume that it was this very want of uniformity, and a prudent desire to limit the arbitrary discretion of Courts and juries, which induced the enactment before referred to.
Unfortunately for American jurisprudence, the same want of harmony is discoverable in the adjudications of our Courts; but while the current of the English decisions would seem to sanction the position assumed by the counsel of the appellant, as the general rule on the subject, we ai*e inclined to the opinion that the converse of that position, under certain restrictions, will be found to embody the American doctrine.
It is laid down in 1 American Leading Cases, page 498, that “ in this country, the general principle has long been settled, that if a debt ought to be paid at a particular time, and it is not then paid through the default of the debtor, compensation in damages equal to the value of the money, which is the legal interest upon it, shall be paid during such time as the party is in default. Interest is considered as incident, legally, to every debt certain in amount, and payable at a certain time.”
Mr. Perkins, in a note to his recent edition of Chitty on Contracts, (page 558 note) says: “ But according to the American authorities, interest will be allowed. after a demand of payment of an unsettled claim for goods sold and [169]*169delivered, or services rendered, from the time of the demand ; and a presentment of the account, or commencement of suit, is sufficient demand upon which to found, and from which to date a claim for interest.”
Notwithstanding the sanction of these two American writers, it is yet painful to reflect that there is still such want of harmony between the Courts of the different States, that it is venturing almost too much to declare what is the American law upon the subject. Each State seems to have a rule for itself, and in the midst of these conflicting views, it will not be deemed Unbecoming in us, should we cease to pursue the bewildering lights of other States, prescribe to ourselves that rule which to our minds is most consonant with sound reason and enlightened policy, and which has been acted upon from the earliest organization of our Territorial government, to the present time. In pursuance of that object, we are inclined to hold that in all cases where the demand sued for is a debt eo nomine, in contradistinction to unliquidated damages, interest is allowable thereon from the time when the same becomes legally due and payable ; aod when no such time is ascertainable, then interest is allowable only from the date of an actual demand of payment, or of the commencement of the suit. Applying this rule to the charge of the Court complained of, and it seems to have been eminently calculated to guide the jury to a proper conclusion in the formation of their verdict. It is true that the verdict is not in strict conformity to the instruction, and had a motion been made for a new trial on that ground and refused, and were the error of such an amount as to demand consideration, we might bo inclined to give the defendant a new trial, for the purpose of having it corrected. But the amount of the excess is so trifling, that acting upon the maxim of eí de minimis non [170]*170curat lex” we are indisposed, by remanding the canse, to subject the parties to additional costs, which would probably amount to more than the actual excess of the verdict. The evidence shows that a demand for payment of the account was made some time in the year 1856, but the precise date is not stated. The suit was instituted on the 21st day of April, 1857. The error in the verdict therefore, is, that the interest was calculated from the 1st day of January, 1856, when, in conformity with the instruction of the Court, it ought to have ben calculated only from the date of the commencement of the suit, or at farthest, only from the 31st day of December, 1856. The excess in the one case amounts to about nine dollars and in the other to about eleven dollars — a sum too small, considering the amount of the principal demand, to subject the parties to further litigation. This amount, the plaintiff ought in conscience ta remit.
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DuPONT, J.,
delivered the opinion of the Court.
This was a suit instituted in the Circuit Court of Jackson county, by the appellee against the appellant, for the recovery of the amount due for a bill of lumber delivered at various times during the year 1855. The suit was commenced on the 21st day of April, 1857, and the declaration contained the single indebitatus count for goods sold and delivered, and the issue was joined upon the plea of non assumpsit. The evidence adduced upon the trial established the fact, that the price of the lumber, if paid for within the current year, was to be eight dollars per thousand, but if not paid for by the close of the year, then it was to be ten dollars per thousand. Upon this evidence, the Court charged the jury as follows : “ If the jury shall find for the plaintiff, they will allow him interest upon the amount which they may find to be due him, from the time [167]*167the money was due and payable by the contract, otherwise they will allow interest from the time of the institution of the suit.”
Under this charge of the Court, the jury found a verdict for the plaintiff, for the whole amount of the account, estimating the price of the lumber at ten dollars per thousand, and gave interest thereon from the first day of January, 1856;
The appellant excepted to the charge of the Court, and this constitutes the first error assiged. In support of this exception the counsel for the appellant contended, first, that there being no evidence of any contract for the payment of interest, the charge was irrelevant and calculated to mislead the jury; and secondly, that the demand sued upon being an open account and unliquidated, the law did not authorize the giving of interest.
With respect to the first point, it is undoubtedly true that the charge of the Court ought always to be relevant and strictly confined to the evidence adduced upon the trial. The correctness of this position is too obvious to need the enforcement of argument. But it is not every irrelevant instruction that will afford a ground for error. The instruction to be erroneous, must be not only irrelevant, but likely to mislead the jury in the formation of their verdict. We do not think that this instruction was calculated to have that effect, although the first clause of it may in some measure partake of the character of an abstract proposition, considered in reference to the evidence that was actually submitted to the jury. With respect to the second point, it is equally true, that as a general rule, the law did not anciently allow interest to be given upon an open account, or an unliquidated demand, of any character. But this rule was not universal, nor was the practice of the English Courts séttled or uniform upon this sub[168]*168ject, prior to the enactment of the 3 & 4 William 4th. It is indeed truly extraordinary that a question of such frequent occurrence should ever have remained for any length of time unsettled. So contradictory were the English authorities down to the time of Mr. Campbell, that in a noteto D’Havilland vs. Bowerbank, (1 Camp. R. 53,) he is made to say: “ It would fortunately be very difficult to fix upon another point of English law on which the authorities are so little in harmony with each other.” We may reasonably presume that it was this very want of uniformity, and a prudent desire to limit the arbitrary discretion of Courts and juries, which induced the enactment before referred to.
Unfortunately for American jurisprudence, the same want of harmony is discoverable in the adjudications of our Courts; but while the current of the English decisions would seem to sanction the position assumed by the counsel of the appellant, as the general rule on the subject, we ai*e inclined to the opinion that the converse of that position, under certain restrictions, will be found to embody the American doctrine.
It is laid down in 1 American Leading Cases, page 498, that “ in this country, the general principle has long been settled, that if a debt ought to be paid at a particular time, and it is not then paid through the default of the debtor, compensation in damages equal to the value of the money, which is the legal interest upon it, shall be paid during such time as the party is in default. Interest is considered as incident, legally, to every debt certain in amount, and payable at a certain time.”
Mr. Perkins, in a note to his recent edition of Chitty on Contracts, (page 558 note) says: “ But according to the American authorities, interest will be allowed. after a demand of payment of an unsettled claim for goods sold and [169]*169delivered, or services rendered, from the time of the demand ; and a presentment of the account, or commencement of suit, is sufficient demand upon which to found, and from which to date a claim for interest.”
Notwithstanding the sanction of these two American writers, it is yet painful to reflect that there is still such want of harmony between the Courts of the different States, that it is venturing almost too much to declare what is the American law upon the subject. Each State seems to have a rule for itself, and in the midst of these conflicting views, it will not be deemed Unbecoming in us, should we cease to pursue the bewildering lights of other States, prescribe to ourselves that rule which to our minds is most consonant with sound reason and enlightened policy, and which has been acted upon from the earliest organization of our Territorial government, to the present time. In pursuance of that object, we are inclined to hold that in all cases where the demand sued for is a debt eo nomine, in contradistinction to unliquidated damages, interest is allowable thereon from the time when the same becomes legally due and payable ; aod when no such time is ascertainable, then interest is allowable only from the date of an actual demand of payment, or of the commencement of the suit. Applying this rule to the charge of the Court complained of, and it seems to have been eminently calculated to guide the jury to a proper conclusion in the formation of their verdict. It is true that the verdict is not in strict conformity to the instruction, and had a motion been made for a new trial on that ground and refused, and were the error of such an amount as to demand consideration, we might bo inclined to give the defendant a new trial, for the purpose of having it corrected. But the amount of the excess is so trifling, that acting upon the maxim of eí de minimis non [170]*170curat lex” we are indisposed, by remanding the canse, to subject the parties to additional costs, which would probably amount to more than the actual excess of the verdict. The evidence shows that a demand for payment of the account was made some time in the year 1856, but the precise date is not stated. The suit was instituted on the 21st day of April, 1857. The error in the verdict therefore, is, that the interest was calculated from the 1st day of January, 1856, when, in conformity with the instruction of the Court, it ought to have ben calculated only from the date of the commencement of the suit, or at farthest, only from the 31st day of December, 1856. The excess in the one case amounts to about nine dollars and in the other to about eleven dollars — a sum too small, considering the amount of the principal demand, to subject the parties to further litigation. This amount, the plaintiff ought in conscience ta remit.
The second error assigned is that the Court erred in refusing to give the following instruction, which was asked for by the plaintiff, to wit: “ That if it (the purchase of the lumber) were to be a cash transaction, it was necessary the account should have been made out, that the party might know the amount.”
Upon referring to the evidence in the record, we do notthink that the instruction asked was necessary to guide the jury to a correct conclusion, and that it was very properly refused.
The second error assigned is therefore overruled.
The third exception is to the refusal of the Court to grant a new trial. Under our statute, error may be predicated upon the granting or refusal of an application for a new trial. "Whenever an application of this character is made, it must be accompanied by an affidavit setting forth the grounds of the application. The affidavit in this case is as ' [171]*171follows: “ The defendant petitions the Court for a new trial in the above case upon the following grounds — that since the trial, the defendant has ascertained that he can prove by Charles Hartsfield, that he was present when the contract was made between the plaintiff and the defendant, and that the contract was, that the plaintiff would sell to the defendant the lumber at eight dollars per thousand feet, to be paid for when the account should be presented to defendant for payment. The defendant did not know previous to the trial that he could prove the contract by the said Hartsfield, or any one else. That said Hartsfield was a witness in the case, and says, the reason he did not prove the contract was, that he was not sworn in chief, but only to answer such questions as should be asked him, and he was not asked as to the contract.”
The affidavit is clearly insufficient, for the very obvious reason, first, because of the very manifest carelessness exhibited by the defendant in getting his evidence before the jury; and secondly because, the evidence which he now seeks to avail himself of through a new trial, is .entirely cumulative. With reference to the first ground of objection, it is pertinent to remark that Hartsfield, whose testimony it is sought to obtain, was introduced as a witness and did testify at the trial of the cause. The only excuse alleged for his not having testified as to the contract, is that he was not sworn in chief, but only to answer questions and that no question was asked him touching the contract. He was the witness of the defendant, and if he was either improperly, sworn, or insufficiently examined, it was the fault of the defendant, of which he ought not now to be permitted to complain. It is a well settled rule, in reference to the granting of new trials in the Courts of common-law, that the party applying on the ground of newly discovered evidence must make his vigilance apparent, for if [172]*172it is left even doubtful, that lie knew of the evidence, or that he might, but for negligence, have known and produced it, he will not succeed in his application. 1 Graham & Waterman on New Trials, 473.
It is laid down in the foregoing authority (3 Gra. & Wat. on N. T., 1,029,) that the discovery after the trial that the witness knew a material fact which he did not disclose, furnishes no excuse, if he was not questioned as to it. And again, (at page 1,030,) that where the defendant, in an action on a promissory note, discovered after the trial that he could prove by a witness examined on the trial the payment of the note, which fact he was not aware of before or during the trial: held, that as ordinary diligence should have induced the defendant to enquire of the witness in respect to so material a point while he was being examined, he was not entitled to a new trial. — (Citing Wright vs. Alexander, 11 S. & M. R., 411.) This latter citation is precisely in point, and conclusive of the application made in this case.
But, admitting that there had been no negligence on the part of the defendant, then we hold that the apjalication was inadmissible upon the second ground above stated, to wit: that the evidence sought to be procured is cumulative. The application for the new trial is put upon the ground that the defendant would be able to prove, by a reexamination of Hartsfield, that “ he (the witness) was present when the contract was made between the plaintiff and defendant, and that’ the contract was, that the plaintiff would sell the defendant the lumber at eight dollars per thousand feet, to be paid for when the account should be presented to defendant for payment.” But the tei’ms of the contract were fully proved upon the trial by another witness, (Graves,) whose testimony agrees in substance with that proposed to be given by Hartsfield. He testifies [173]*173that “he (witness) was the miller who had charge of plaintiff’s mills; that the lumber charged in the bill of particulars was sold and delivered, and that the custom of the mill was, where there was no contract, the price of lumber was eight dollars per thousand, cash, or when called for during the year, or eight dollars if paid by the end of the year — otherwise, ten dollars per thousand; that defendant said he would pay cash.”
Here it will he seen that there is no material variance between the testimony of Graves touching the terms of the contract and that proposed to be obtained by a re-examination of Hartsfield; and it is a well-settled rule, that on a motion for a new trial, on the ground of newly discovered evidence, if the evidence proposed to be obtained be merely cumulative, or in corroboration of testimony to a point presented at the former trial, the motion will' not be granted. — 1 Graham & Waterman on New Trials, 486.
It is ordered and adjudged that the judgment of the Circuit Court, pronounced in this cause, be affirmed.