Hopkins v. Orr

'$1,314.65.

ST. LOUIS. October 1, 1881.

'Four months after date, I, the subscriber, of Ft. Wingate, county of $05R State of New Mexico, promise to pay to the order of Orr and Lindsley (a firm composed of William C. Orrand De Courcey B. Lindsley,) thirteen hundred and fourteen 65-100 dollars, with exchange, for value received, with interest at the rate of ten per cent. per annum after maturity until paid, without defalcation or discount, negotiable and payable at 1st National Bank, Santa F e, N. M.

'L. N. HOPKINS, JR.'

The description of the note in the special count corresponded with the note filed, except that it did not state that the note was payable with exchange, and at a particular place. The defendant pleaded non-assumpsit, and payment. At the trial, the plaintiffs put in evidence the note filed, and were permitted to read it to the jury, notwithstanding the defendant objected that there was a variance between the note and the declaration. The only other evidence introduced was testimony of the plaintiffs' attorney that, on March 7, 1882 he presented this note to the defendant, and the defendant admitted the indebtedness, and asked him not to bring suit upon it before April 1st, and on that day he would pay it; but he failed to do so. The defendant objected to the evidence as incompetent and immaterial. But the court overruled the objection, and instructed the jury to find for the plaintiffs for $1,399.48, being the amount of the note, with interest computed at the rate of 10 per cent. The jury returned a verdict saying that 'they find for the plaintiff in sum of thirteen hundred and ninety-nine and 48-100.' The court overruled motions for a new trial and in arrest of judgment, and gave judgment 'that the said plaintiffs do have and recover from the said defendant Lambert N. Hopkins that said sum of thirteen hundred and ninety-nine and 48-100 ($1,399.48,) and also his costs in their behalf laid out and expended, to be taxed, but that execution shall not issue therefor until further order of the court.' The defendant appealed to the supreme court of the territory, and executed to the plaintiffs a bond, with sureties, the condition of which as that 'the said Lambert N. Hopkins shall prosecute his said appeal with due diligence to a decision in the supreme court, and that if the judgment appealed from be affirmed, or the appeal be dismissed, he will perform the judgment of the district court, and that he will also pay the cost and damage that may be adjudged against him upon his said appeal.' Thereupon the district court allowed the appeal, ordered execution to be stayed while it was pending, and allowed a bill of exceptions tendered by the defendant to the rulings aforesaid. The supreme court of the territory held that there was a variance between the special court and the note offered in evidence, but that the note was admissible in evidence, under the common counts, and that, under those counts and the statutes of the territory, the plaintiffs were entitled to recover the sum of $1,314.65, with interest thereon, computed at the rate of 6 instead of 10 per cent.; and ordered that, if the plaintiffs should file a remittitur of the excess of 4 per cent. interest, the judgment of the district court be affirmed; but, if they should fail to do so, the judgment be reversed, and the case remanded for a new trial. Thereupon the plaintiffs filed such a remittitur; and the supreme court of the territory affirmed the judgment of the district court against the defendant and the sureties on his appeal-bond, and adjudged that the plaintiffs recover against them the sum of $1,314.65, and interest at the rate of 6 per cent. The defendant and the sureties sued out this writ of error.

John H. Knaebel and O. D. Barrett, for plaintiffs in error.

H. W. Garnett and W. B. Childers, for defendants in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.