No exception can be taken in this Court which was not moved
below, or which does not appear in some way on the record
below.
Formerly the laws of Louisiana did not allow interest on
accounts or unliquidated claims, but now it is due from the time
the debtor is put in default for the payment of the principal.
Reab was a citizen of Connecticut, and Barrow of Louisiana.
The facts in the case appeared by the record to be these.
On 5 February, 1845, Reab purchased at New Orleans from J. R.
Conner, alleged to be the lawfully authorized agent of Barrow,
35,000 gallons of molasses at the rate of twelve and a half cents
per gallon, to be delivered at Field's Mills on the Bayou
Lafourche, said molasses being represented as the crops of two
plantations owned by Barrow, one being called the Myrtle Grove
Plantation and the other being called the Home Plantation or Home
Place. At the time of purchase, Reab paid to Conner for Barrow five
hundred dollars.
Conner gave an order upon Barrow for the molasses, to be
delivered to Reab or order, who sent a William Patton for it. The
overseer wrote upon the face of the order in pencil, "The molasses
has all been shipped from Myrtle Grove and the Residence."
On 20 March, 1845, Reab brought an action in the circuit court
against Barrow, claiming, for expenses of sending a vessel &c.,
and for the rise in the price of molasses, the sum of
$3,755.07.
On 22 April, 1845, Barrow answered the petition by
Page 50 U. S. 367
a general denial, and by denying specially that Conner was his
agent.
In March, 1847, the cause came up for trial, when the jury found
a verdict for the plaintiff for $3,000, with interest. Whereupon
the court entered judgment against Barrow for the sum of three
thousand dollars, with interest thereon at the rate of five percent
per annum from judicial demand, 29 March, 1845, till paid; and the
costs of suit.
In the course of the trial, the following bill of exceptions was
taken.
"Be it remembered that on the trial of this cause, to-wit on 9
March, 1847, the plaintiff offered in evidence, attached to the
deposition of William C. Patton, a written instrument in the words
following:"
" Mr. R. Barrow, or manager, will deliver to Mr. Josiah Reab or
order the molasses on Myrtle Grove, as well as the production of
the Home Place, or Residence, said molasses to be delivered in
casks, to be furnished by the purchaser at Field's Mills, and
oblige &c."
"J. R. CONNER"
"Upon which was this endorsement:"
" Deliver to Mr. William Patton. JOSIAH REAB"
"Written on the face, by overseer of the defendant, in
pencil:"
" The molasses has all been shipped from Myrtle Grove and the
Residence."
"N. L. F. MUNROE"
"And after the evidence had been given to the jury by both
parties, the defendant, through his counsel, requested the court to
charge the jury that in order to recover damages for the alleged
failure of the defendant to deliver the article sold by his alleged
agent, as set forth in the plaintiff's petition, it would be
necessary for him to show that a demand in writing or in one of the
other modes prescribed by article 1905 of the Louisiana Code had
been made upon him for the delivery of the article sold by the
vendee or some person authorized, and that he had been put in
default according to the terms of the said article 1905. 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 endorsement 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.
"
Page 50 U. S. 368
"To which opinion and charge of the court the defendant, through
his counsel, excepted and prayed leave of the court that said
exception be made of record, and that he have his bill of exception
thereto, which leave was granted by the Honorable Court, and this,
the bill of exceptions of the defendant to the said charge of the
court, was then and there signed and sealed by the Honorable
Court."
"[L.S.] THEO. H. McCALEB,
U.S. Judge"
The defendant, Barrow, sued out a writ of error, and brought the
case up to this Court.
Page 50 U. S. 370
MR. JUSTICE WOODBURY delivered the 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 How. 131,
45 U. S.
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, 11 La. 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."
Page 50 U. S. 371
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. 580; 4 La. 129, 140; 8
La. 572. But on 20 March, 1839, this provision was repealed.
Louisiana Acts, § 15, 168; 2 La.Ann. 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. 562;
Porter v. Barrow,
id., 140; and
Ryder v. Thayer, id., 149;
Sullivan
v. Williams, 2 La.Ann. 878; 3 Robinson 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 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 fulfill
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; Pet.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;
Pet.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 endorsement of the
vendee for the delivery of the thing sold, and
Page 50 U. S. 372
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 endorsed
on it, in writing.
On the whole case, then, the judgment below must be
Affirmed with damages at the rate of six percent.
Order
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 percentum per
annum.
