Gunn v. Rankin County Savings Institution , 2 Miss. Dec. 92 ( 1881 )

Opinion.

Cooper, J.:

Complainant in his bill, to which a pro confesso was taken, charged that on the 3d day of July, 1812, he borrowed from the said Nankin County Savings Institution, by its cashier, Joseph M. Jayne, the sum of $455.48, for which said sum and interest at 2% per cent per month thereon (meaning thereby until maturity), he executed and delivered to the said Joseph U. Jayne, cashier as aforesaid, his promissory note due and payable on the 3d day of January, 1813. “And your orator further states and shows that' the sum of money named in the face of said note was $523.80, which was made up of the sum of $455.48 actually borrowed by him from the said institution, and interest thereon from the date of said note to the date of its maturity, computed at the rate of 2% per cent per month, but he- states that no promise or agreement in writing, either in said note or otherwise, was ever made or entered into by him in regard to the payment of interest on said note to accrue after the maturity of the same.”

When the cause was set for final hearing the chancellor referred the same to a commissioner to take testimony to show whether there was any promise or agreement in said note (which had been lost) to pay any rate of interest, and if so, what promise or agreement and what' rate of interest was agreed and promised therein to be paid. Testimony was taken and it appears from the evidence for the defendant that the note contained an express promise to pay interest after the maturity of the same at 2% per cent per month. Stating the account on this evidence, it appears that the amount claimed by the defendant is due by the complainant. This view was taken by the chancellor, who thereupon dismissed complainant’s bill, and from this decree he appeals.

The allegations of the bill, confessed by the defendants, are that there was no promise in the note for the payment of interest. The facts set forth, we think, show with certainty the nature of the transaction and the form of the note. It is distinctly averred that interest at the rate of 2% per cent per month was calculated on the sum borrowed, up to the time when the note would mature, and, this sum being added to the sum borrowed, the note was given for the aggregate amount, and that no promise appears on the face of the note to pay anything as interest. The pro confesso admitted this allegation, and precluded the defendants from making any proof to the contrary. It was therefore error to permit the consequences of the pleading to be destroyed by evidence.

The decree will he reversed and cause remanded to the court below, with instructions to order an account to be taken, charging complainants with the sum of $523.80, and interest at 6 per cent after January 1, 1873, allowing him credit for the payments charged in his bill as of the respective dates at which they are charged to have been made.