Page:Federal Reporter, 1st Series, Volume 5.djvu/508

 496 PBDEBAL BEPOBTEB. �First, wHether the pass-book, under the circumstances, amounted to an account stated; second, whether there had beensuch an appropriation of payments as closed inquiry in reference to the rate of interest charged to defendant by Prankel & Block; third, whether the contract for the 500 shares of Franklin stock was an entire contract. Upon these points I have considered everything said in argument and put into briefs. My opinion on none of them is changed. One argument now urged by defendant deserves notice because it was not made before. It is this : The statute of Nevada does not allow a recovery of interest at a greater rate than 10 per cent, par annum unless the agreement therefor is in writing. The stated accounts çontain items for interest at a greater rate. The promise implied from a statement of accounts is a verbal promise, and hence cannot be enforced for the interest. The answer to this argument is, in my judgment, this : The account stated is a new contract between the parties. A balance is found against one, and he agrees to pay that balance, not the items which may bave entered into it. No inquiry is permitted in regard to the items except there has been fraud or a clear mistake, and neither of these is claimed in this case. �The promise, then, implied from the account stated, is a new one to pay a definitely-ascertained amount, and is, in no just sense, an agreement to pay interest at 2 per cent, per month. �It is also now argued that the foUowing errors of law occurred at the trial : After thp witness Prankel had stated that the rate of interest charged to defendant in the account was 2 per cent, per month, he was asked by counsel for plaintiff: "Was that the usual rate of interest among bro- kers and bankers in Virginia?" Counsel for defendant objected on the ground that il called for incompetent testi- mony. The objection was overruled, and defendant excepted. The witness then answered : "I had to pay that rate myself." No objection was made. to the answer, nor any motion to strike it out. �The answer was not responsive to the question, and did ����