Nodine v. Shirley

Mr. Justice Moore

delivered the opinion of the court:

An examination of the errors assigned shows that the plaintiff failed to demand interest in his complaint and that the referee found he was entitled to interest in the sum of ten thousand nine hundred and thirty dollars and sixty-five cents. It also appears that on April 7, 1884, the plaintiff sold and delivered to the defendant a band of cat-lie for the sum of twenty thousand eight hundred and twenty-five dollars, which formed the principal upon which the interest was computed, and that from an examination of the account it appears that at the time of said sale the plaintiff was indebted to the defendant, and that the *251 defendant on April 9, 1884, paid to the plaintiff ten thousand dollars; April 26, one thousand dollars; and May 1, ten thousand dollars, thus fully paying the whole claim, and for these reasons no interest should be allowed.

It also appears that the referee had allowed the plaintiff four thousand five hundred dollars for pasturing stock, and that this stock was owned by the plaintiff and defendant as partners, and for that reason should not have been allowed in this action. The judgment of the court below will be modified, and as there is no dispute upon the facts, a judgment will be there entered for the amount of the judgment in the court below less these two items, or for the sum of one thousand nine hundred and nineteen dollars and ninty-five cents. Modified.