Whitlock v. Castro

Roberts, J. The court charged the jury, that plaintiffs, Whitlock & Co., were not entitled to recover any interest on the notes sued on. This charge was calculated to control the verdict to the amount of twelve or fifteen hundred dollars ; and the question is, was it erroneous, under the circumstances. It was given, doubtless, on the assumed fact, that the notes were not made, or were not payable, in Texas. The petition showed that the two large notes, were made in “ New York,” and payable “ at “office of Commercial and Agricultural Bank of Texas, in New “Orleans, (in 1851 and 1852.) These words, “New York,” and “ New Orleans,” constitute a part of the notes, without any comment, in connection with them, explaining their locality. Without such averment, the court could not judicially know that they were placed beyond the limits of this State. (Cook & Cook v. Crawford, 4 Tex. Rep. 420.) According to the decision of this court, in the case of Able v. McMurray, 10 Tex. Rep. 350, these notes bore interest at whatever rate was payable at New Orleans, whether that place was in, or out, of the State of Texas ; and not. being alleged to have been out of the State, it must be taken to have been within it, as to the judicial determination of this case. As to the small note, it is not so clear that the charge was erroneous. That, was made payable at the office of Messrs. Whitlock & Co., the plaintiffs, and the commencement of the petition reads as follows, to wit, “ The petition of John W. Whitlock & Co., a mercantile firm of the State and city of New York, [112] “composed of the following named persons, to wit, John W. “Whitlock and James Kellogg, most respectfully represents “that,” &e. From this it may be inferred, that the said members of this firm resided in the State and city of New York, though it does not follow necessarily that they both did. The object of this‘recital is to give the residence and names of the plaintiffs, in compliance with the statute. From it, it may be reasonably presumed, that their “ office” was in the State and city of New York. But then a firm may have an “office” in two or more places. It might be presumed also, that the “New York,” recited in the notes, was the city, in the State of New York, where this firm was located. This recital was evidently not intended, by the pleader, to indicate the place where the notes were executed. If such had been his object, for the purpose of recovering interest, “New Orleans” was the place, as to the two large notes, whose locality it was important to allege, (as the notes were payable there,) and not “New York.” (Able v. McMurray, 10 Tex. Rep. 350.) There is nothing in the petition, from which it can be inferred, that New Orleans was in the State of New York. But even that may be deduced, by heaping presumption upon presumption. For instance, first presume that the notes were executed in the State of New York, from the recital as to locality of the firm, intended to indicate the residence of plaintiffs ; then the rule is, that the notes will bear New York interest, unless New Orleans, where they are payable, is shown to be in a different State; and this rule is founded on the presumption, that New Orleans is in the State of New York, in the absence of an averment to the contrary. It is by some such process as this, only, that the fact can be assumed that these-notes, that were payable in New Orleans, bore interest according to the rate of interest in the State of New York. In ascertaining whether or not, an averment of a fact, necessary to support or qualify a cause of action, has been made, it is not required of a court to collate detached parcels of recitals in a petition, and construe them in a connection, and for a purpose, never intended by the pleader, in order [113] to supply, by the aid of inferences, a distinct and material averment, which has been clearly omitted in its proper place. Our statute requires that the plaintiff shall set forth, in addition to the names and residence of the parties, if known, “ a full and “ clear statement of the cause of action, and such other allegations, pertinent to the cause, as he may deem necessary to the “suit.” If the plaintiff sought to recover New York interest, an allegation pertinent to the cause, and necessary to such object, was, that the notes were made there, and that the rate of interest in that State was seven per cent. There being no such allegation in the petition, and there being no allegation as to the locality of New Orleans, or the rate of interest there, the court should not have assumed to know judicially, that the notes were payable out of the limits of the State of Texas; which it must have done, to have given the charge to the jury, that they should allow the plaintiffs no interest on the notes. It is proper to remark, that the record shows abundantly, that the court was led into this error, by the conduct of both parties,, in the prosecution and defence of the cause. At a previous trial, a judgment had been rendered in favor of the plaintiffs, for the amount of the notes, with seven per cent, interest thereon, upon proof, it must be presumed, of the rate of interest of New York. Upon a motion for a new trial, other grounds of error were complained of, and not this. An appeal was taken to the Supreme Court, and this allowance of interest, at seven per cent., though apparent on the face of the judgment, was- not assigned as error. The case being sent back upon other points,, was tried on the same petition, and the same proof for plaintiffs; the defendant volunteering an admission that the rate of interest of the State of New York was seven per cent. The parties thus seemed to take for granted, what the court assumed, that the plaintiff must recover New York interest, if any. And it was obvious, that the plaintiff had not attempted to allege, that the rate of interest in New York was seven per cent., while it was not so obvious, without a critical examination, that [114] the fact, which the parties seemed to take for granted, did not appear in the petition. There is nothing in the charge, in the other branch of the case, pertaining to the re-convention, which requires any opin. ion ; and as the canse will be remanded for a new trial, it may be most appropriate, not to make any comment upon the evidence, as to its sufficiency. Eor the error in the charge of the court, instructing the jury not to allow interest on the notes, the cause is reversed and remanded. Eeversed and remanded.