Philips, P. J.
This is an appeal from a judgment rendered on the report of referees. The plaintiff sued to recover the sum of §1,357.50, the amount alleged to have been paid by him on a judgment against him as surety for defendants. Suit was instituted October 27, 1885. The defendants answered jointly, denying that the sum so paid by plaintiff was as surety ; but averred that plaintiff was a partner of defendants, and they made a joint note as such for the sum of six thousand dollars, and the amount paid by plaintiff was in renewal of a balance on said note.
[654] In a second count the defendants alleged, that, in August, 1876, plaintiff and defendants jointly executed to the Savannah Savings Bank their note for five thousand dollars, at ninety days, with ten per cent, interest from maturity; that from time to time defendant, Newman, renewed said note, and paid all the interest thereon ; that of the principal so borrowed plaintiff received one thousand dollars ; that, on January 16, 1878, defendant, Newman, paid off said note, which he filed with the answer, claiming a counter-claim on account thereof.
The answer contained a third count, setting up other items of account against plaintiff. An accounting was prayed for. Plaintiff replied, setting up counter-accounts against defendants’ claims.
The circuit court referred the matters to referees. The referees made their report; and on exceptions taken thereto by defendants, the court re-referred the cause to the referees. The material part of the order of reference is as follows: “ It is further ordered and adjudged that the said cause be and the same is re-referred to said referees for further proceedings, with instructions that said referees take and state a full account between said parties hereto, stating and setting out the items in said account, and to further find the issues involved in the pleadings of said parties, and to take and hear other and further evidence of the respective parties hereto, reducing the same to writing, and will make a full report of their finding and of their proceedings to the next regular term of this court.”
The referees again made report to the December term, 1886, of the court, in which, inter alia, they reported the following findings: “That, on the second day of October, 1885, respondent, James Gr. Newman, paid on judgment aforesaid, as security for appellants, the sum of $1,357.52; that, at the time of the payment of said judgment by James Gr. Newman, as aforesaid, on the twentieth of October, 1885, there was an unsettled account between respondent and appellant, John L. Newman, of which the following is a full statement:
[655] “James Gr. Newman, in acc’t with J. L. Newman.
Dr. Cr.
Aug. 9, 1876, cash (borrowed money).......... $1,000 00
Oct., 1887, Kansas cattle. 1,000 00
“ “ To 1-6 expense
to Kansas and discount on note................ 77 00
April, 1878, by bill of exchange (proceeds of cattle shipped)............ $1,300 00
April, 1878, to note, J. Gr. Newman, paid Savannah Savings Institution. 500 00
March, 1879, by cash.... 400 00
Balance............ 877 00
$2,577 00 $2,577 00
“ The referees find that said balance on account of $877 should be allowed as a setoff to said John L. Newman, in this action, and that said James Gr. Newman should have judgment for the difference between said setoff and said sum of $1,357.52 paid by said James Gr. Newman, as security as aforesaid, with interest thereon from the commencement of this suit.”
The defendants filed exceptions to this report. The exceptions were overruled; judgment was rendered on the report, and defendants have appealed to this court.
I. No part of the evidence taken and returned by the referees is presented to this court by the abstract of record furnished by appellants, and we must assume that the evidence fully supported the findings. This is the recognized rule of the appellate courts. ' The findings of the referees stand as the special verdict of a jury, and in law cases are conclusive on the court. St. Louis Stoneware Co., 8 Mo. App. 217; Woodrow v. Younger, [656] 61 Mo. 395; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Gamble v. Gibson, 75 Mo. 326.
II. . The chief complaint of appellants is, that the report fails to make any special findings touching the item of the six thousand dollar note mentioned in the first count of the answer. It would be a sufficient answer to this objection to say, that the abstract of record furnished by appellants does not purport to contain the whole of the report, and as presented to this court it is apparently only a part thereof. If we should oblige-appellants, by departing from the rule in looking into the transcript, we would’ find the fact to be that the referees did make substantially a finding on all the issues, including this item or claim. For the report, after stating the findings of the referees on many other items not set out in that portion abstracted by appellants, says: “The referees find no evidence of- any other business transactions between said parties in the period included in this-report, except as stated in this report.” As the matter of the six thousand dollar transaction was alleged to have occurred within the periods covered by the report, and the items were examined by the referees, this is to be regarded as a finding against the claim for want of proof.
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Philips, P. J.
This is an appeal from a judgment rendered on the report of referees. The plaintiff sued to recover the sum of §1,357.50, the amount alleged to have been paid by him on a judgment against him as surety for defendants. Suit was instituted October 27, 1885. The defendants answered jointly, denying that the sum so paid by plaintiff was as surety ; but averred that plaintiff was a partner of defendants, and they made a joint note as such for the sum of six thousand dollars, and the amount paid by plaintiff was in renewal of a balance on said note.
[654] In a second count the defendants alleged, that, in August, 1876, plaintiff and defendants jointly executed to the Savannah Savings Bank their note for five thousand dollars, at ninety days, with ten per cent, interest from maturity; that from time to time defendant, Newman, renewed said note, and paid all the interest thereon ; that of the principal so borrowed plaintiff received one thousand dollars ; that, on January 16, 1878, defendant, Newman, paid off said note, which he filed with the answer, claiming a counter-claim on account thereof.
The answer contained a third count, setting up other items of account against plaintiff. An accounting was prayed for. Plaintiff replied, setting up counter-accounts against defendants’ claims.
The circuit court referred the matters to referees. The referees made their report; and on exceptions taken thereto by defendants, the court re-referred the cause to the referees. The material part of the order of reference is as follows: “ It is further ordered and adjudged that the said cause be and the same is re-referred to said referees for further proceedings, with instructions that said referees take and state a full account between said parties hereto, stating and setting out the items in said account, and to further find the issues involved in the pleadings of said parties, and to take and hear other and further evidence of the respective parties hereto, reducing the same to writing, and will make a full report of their finding and of their proceedings to the next regular term of this court.”
The referees again made report to the December term, 1886, of the court, in which, inter alia, they reported the following findings: “That, on the second day of October, 1885, respondent, James Gr. Newman, paid on judgment aforesaid, as security for appellants, the sum of $1,357.52; that, at the time of the payment of said judgment by James Gr. Newman, as aforesaid, on the twentieth of October, 1885, there was an unsettled account between respondent and appellant, John L. Newman, of which the following is a full statement:
[655] “James Gr. Newman, in acc’t with J. L. Newman.
Dr. Cr.
Aug. 9, 1876, cash (borrowed money).......... $1,000 00
Oct., 1887, Kansas cattle. 1,000 00
“ “ To 1-6 expense
to Kansas and discount on note................ 77 00
April, 1878, by bill of exchange (proceeds of cattle shipped)............ $1,300 00
April, 1878, to note, J. Gr. Newman, paid Savannah Savings Institution. 500 00
March, 1879, by cash.... 400 00
Balance............ 877 00
$2,577 00 $2,577 00
“ The referees find that said balance on account of $877 should be allowed as a setoff to said John L. Newman, in this action, and that said James Gr. Newman should have judgment for the difference between said setoff and said sum of $1,357.52 paid by said James Gr. Newman, as security as aforesaid, with interest thereon from the commencement of this suit.”
The defendants filed exceptions to this report. The exceptions were overruled; judgment was rendered on the report, and defendants have appealed to this court.
I. No part of the evidence taken and returned by the referees is presented to this court by the abstract of record furnished by appellants, and we must assume that the evidence fully supported the findings. This is the recognized rule of the appellate courts. ' The findings of the referees stand as the special verdict of a jury, and in law cases are conclusive on the court. St. Louis Stoneware Co., 8 Mo. App. 217; Woodrow v. Younger, [656] 61 Mo. 395; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Gamble v. Gibson, 75 Mo. 326.
II. . The chief complaint of appellants is, that the report fails to make any special findings touching the item of the six thousand dollar note mentioned in the first count of the answer. It would be a sufficient answer to this objection to say, that the abstract of record furnished by appellants does not purport to contain the whole of the report, and as presented to this court it is apparently only a part thereof. If we should oblige-appellants, by departing from the rule in looking into the transcript, we would’ find the fact to be that the referees did make substantially a finding on all the issues, including this item or claim. For the report, after stating the findings of the referees on many other items not set out in that portion abstracted by appellants, says: “The referees find no evidence of- any other business transactions between said parties in the period included in this-report, except as stated in this report.” As the matter of the six thousand dollar transaction was alleged to have occurred within the periods covered by the report, and the items were examined by the referees, this is to be regarded as a finding against the claim for want of proof.
III. It is also objected to the report that the-referees failed to allow defendants interest on the balances of the accounts between them and the plaintiff on the debits shown by the report against plaintiff. These items come clearly under the head of “accounts ” mentioned in section 2723, Revised Statutes ; and it has-been repeatedly held that no interest is allowable on such accounts until after demand made for payment. Southgate v. Railroad, 61 Mo. 95; Phillips v. Laclede Co., 76 Mo. 68; Compton v. Johnson, 19 Mo. App. 88. As the record fails to show any demand prior to the filing of the counter-claim in this action, no interest was allowable by the referees back of the date. And so the finding showing a balance due the- plaintiff, at the time [657] of institution of suit, he was clearly entitled to interest thereon. The rule is, that a surety who pays a judgment against himself for the debt of his principal, is entitled to recover from the principal the rate of interest paid on the judgment to the time of such payment, and six per cent, interest thereafter. Bushong v. Taylor, 82 Mo. 661. As to the one thousand dollar item of August 9, 1876, borrowed money, appellants make especial claim that they should have been allowed interest thereon. There is no evidence presented to this court by appellants that this item is otherwise than stated in the report of the referees. It does not appear when this money became due and payable. If no time of payment was named in the contract, it would be payable on demand. Compton v. Johnson, 19 Mo. App. 88; Calton v. Bragg, 15 East, 253; 1 Danl. Neg. Inst., sec. 599. And of consequence no interest would acme until demand made. Defendants took no exceptions to this report for failing to find when this one thousand dollar item became due and payable. The presumption is to be indulged that the evidence merely showed what the report states, that this money was borrowed on the ninth day of August, 1876, without more ; and as defendants made no proof of demand prior to the institution of this suit no interest was allowable on this item.
IY. In the third exception to the report is the following: “That said report erroneously credits said James Gr. Newman with one thousand dollars, for shipment of cattle in June, 1877, to Chicago, by John L. Newman, which the evidence shows clearly he did not make, and should not have been credited with.”
I am unable to understand this objection, as I discover no such item of one thousand dollars credited to plaintiff in the report. It credits plaintiff with thirteen hundred dollars, “April, 1878, by bill of exchange — proceeds of cattle shipped.” If the exception was aimed at this credit it was singularly indefinite; and we are [658] unable to determine whether it was or not, without guessing at it. This would be unsafe. He who claims error must make that error apparent; otherwise this court must presume that the proceeding of the trial court was correct, and that the verdict was supported by the evidence. Foster v. Nowlin, 4 Mo. 23; Walter v. Cathcart, 18 Mo. 256.
It follows that the judgment of the circuit court should be affirmed. It is so ordered.
All concur.