Barrow v. Reab/Opinion of the Court

The plaintiff in error, in his argument, relies on two grounds for reversing the judgment below.

One is, that the judge should have instructed the jury that they must be satisfied, when the demand was made, that a proper tender of the price was also made.

But, on turning to the record, it does not appear that any exception was taken at the trial for any omission of this kind. And it is a well-settled practice, that no exception can be taken here which was not moved below, or which does not appear in some way on the record below. Garland v. Davis, 4 Howard, 131, 143.

Besides this objection to the present ground assigned for a reversal, the presumption is, that the judge in truth informed the jury, that a proper tender or readiness to pay must be shown, unless waived by Barrow, or the exception would have been taken there, and would be spread on the record. Much more is this to be presumed, as such tender or readiness was averred in the declaration; and its importance, therefore, was called to mind, as well as being recognized by the laws of Louisiana. Ferran's Adm'x v. Lambeth et al., 11 La. Rep. 77, 101.

The other exception urged here is the allowance by the court of interest on the verdict. This allowance appears on the record, and was in conformity to the finding of the jury, which was 'for three thousand dollars, with interest.' To be sure, the laws of Louisiana once provided that 'no interest shall be allowed on accounts or unliquidated claims.' (Code of Practice, No. 554; 4 Martin, 620; 2 La. Rep. 580; 4 La. Rep. 129, 140; and 8 La. Rep. 572.) But on the 20th of March, 1839, this provision was repealed. (Louisiana Acts, § 15, p. 168; 2 La. Ann. Rep. 878.) And the rule since established, in article 1932 of the Civil Code, is,-'In contracts which do not stipulate for the payment of interest, it is due from the time the debtor is put in default for the payment of the principal, and is to be calculated on whatsoever sum shall be found by the judgment to have been due at the time of the default.'

This provision has, in several cases in Louisiana, been held to apply to transactions of this kind, settling the law now to be as the court below virtually adjudged; namely, that 'sums due on contracts bear interest from judicial demand, though unliquidated.' Petrie v. Woffard, 3 La. Ann. Rep. 562; Porter v. Barrow, Ibid. 140; and Ryder v. Thayer, Ibid. 149; Sullivan v. Williams, 2 La. Ann. Rep. 878; 3 Robinson, (La.) 361; Erwin v. Fenwick, 6 Martin, N. S. 230.

Such, too, seems to be the rule as to interest in some other States, resting on general principles. Van Rensselaer v. Jewett, 2 Comstock, 135; Enders v. Board of Public Works, 1 Grattan, (Va.) 389. More especially has this been considered allowable, in England as well as this country, if, as here, interest be given as a part of the damages for a wrongful refusal to fulfil a contract. Arnott v. Redfern, 3 Bingh. 353; 2 Carr. & Payne, 88; S.C.., 1 Maule & Selw. 169; Doug. 376; Noe v. Hodges, 5 Humphreys, 103; Peters, C. C. 172; Cooke, 445. But the general practice, where no statute or usage exists to the contrary, is, not to allow interest on unliquidated damages due in cases of ordinary contracts. Anonymous, 1 Johns. 315; 2 Penn. 652; Peters, C. C. 85, 172, 221; Colton v. Bragg, 15 East, 223; 3 Gilman, 626. Independent, however, of the rule elsewhere, the law in Louisiana must, in this instance, govern in respect to interest; and, as we have before shown, it sustains the course adopted by the Circuit Court.

There was one formal exception taken below, and set out on the record, which has not yet been noticed. The defendant insisted, that it was necessary for the plaintiff to show a demand in writing.

'Whereupon the court charged the jury, that if they should be satisfied that there had been a sale, and that the instrument aforesaid was a memorandum of the sale, with the indorsement of the vendee for the delivery of the thing sold, and that the same had been presented to the defendant or his authorized agent, such would be a demand in writing under the terms of the article 1905 of the Louisiana Code.

'To which opinion and charge of the court the defendant, through his counsel, excepted.'

But in the argument this exception did not appear to be relied on, and could not be successfully, as the sale, by the evidence, seems to have been in writing, the order to receive the article sold in writing, and this order presented, and a refusal indorsed on it, in writing.

On the whole case, then, the judgment below must be affirmed, with damages at the rate of six per cent.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum.