Pickens v. McCoy

Johnson, President: I wrote an extended review of the evidence and pleadings and came to the conclusion, that at the time the issue was ordered, the evidence was not so conflicting as to make it doubtful on which side was the preponderance; but I was and am still* of opinion, that the evidence at that time"clearly preponderated in favor of the defendants. My brother, Green, disagreed with me, and by a long opinion demonstra352 tecl, as he thinks, that no issue ought to have been ordered, because the evidence clearly preponderated in favor of the plaintiff. We do not file the analysis of the evidence made by either brother Green or myself, it being wholly unnecessary to do so. Brother Snyder expresses no opinion as to the weight of the evidence, as under the decision of this Court in Van Gilder v. Hoffman, 22 W. Va. 1, it was not necessary. In that case we held, that where there is a conflict of evidence and it is so nearly balanced as to make it doubtful on which side is the preponderance, an issue ought to be directed; but when, though there be a conflict, it is not of such character, no issue ought to be ordered. The conflict of the evidence must be regarded as of this character, and as justifying the direction by the circuit court of an issue, whenever on appeal the Appellate Court is so divided in opinion as to the weight of the evidence, that one or more of the judges think, that the issue ought not to have been directed, because the evidence establishes clearly one state of facts, while the other judge or judges think the evidence establishes an opposite state of facts. This marked diversity of opinion as to the weight of evidence is itself sufficient to show, that it is doubtful on which side is the preponderance, and therefore in such case the order of the circuit court directing the issue ought not to be reversed. That decision we approve, and therefore we must affirm the decree directing the issue in this cause. There were no exceptions taken to the rulings of the court in'the trial of the issue. Bid the court err in requiring the aggregate sum of one thousand two hundred and ninety-nine dollars and sixteen and two thirds cents to bear interest at six per centum per annum until paid? The record shows that the one thousand dollar bond bore interest at three per cent per'ammm. The aggregate was made up by calculating the interest on the bond at three per cent until the rendition of the decree. In Shipman v. Baily, 20 W. Va. 140, we held, that in contracts for the payment of money the interest on the principal sum is a legal incident, of the debt, and a part of the contract, and where there is a contract for the payment of a specified legal rate of interest, whether such rate is fixed by the contract itself, or by the law of the place where it is made, the obligation [353] of the contract extends to the payment of such' interest as fully as it does to the principal sum, and courts have no more power to change the rate thus fixed than they have to dispense with the enforcement of the contract either in whole or part. A contract for the payment of interest a.t the rate of eight per cent from date until paid, if such rate is authorized by the law of the place where made, may be computed at such rate to the date of the decree under the provisions oí section 16 of chapter 131 or the Code, and the decree for the aggregate sum thus computed will continue to bear interest at this rate. It follows from this, if a bond by its terms bears interest at three, per vent from date,'a decree for the payment thereof should be for the aggregate sum due, the interest being computed at three per cent to the date of the decree, and then the decree ought to provide for the payment of interest thereon at the rate of three per cent until paid. A decree providing for interest on such aggregate sum at six per cent is erroneous. . The decree in this case does so provide, and for this reason it is reversed with costs to the'appellant. Brooke v. Roane, 1 Call. 205; Bent v. Patton, 1 Rand. 25; and this Court proceeding to render such decree as the circuit court ought to have rendered, a decree is here rendered for one thousand two hundred and ninety-nine dollars and sixteen and two third cents, with interest thereon at three per cent per annum from the 28th day of February, 1878, until paid, and the plaintiff must recover costs against the defendants in the suit. The decree of March 1, 1878, is erroneous, because it decrees the same sum in favor of defendant, McCoy, against the defendant, Oliver P. Bowers, when the bill charges, that, “McCoy did not pay more than about one-half to said Bowers and "Warder.” This charge in the bill is .not controverted, and there is no proof on the subject. This decree is also reversed, and this cause is remanded, with leave to the said McCoy to prove in the cause what he did pay said Bowers for said bond; and a decree should be entered for such sum and interest. Reversed. Remanded.