Reade v. . Street , 122 N.C. 301 ( 1898 )

The only ground of error relied on in this Court, the others being abandoned, is that the judgment is for $457.72 with interest at 8 per cent from the 8th of June, 1896, whereas the prayer for judgment is only for $423 with 8 per cent interest from 8 June, 1896. There is no exception of this kind in the record, but it arises from the appeal itself, which is perse an exception to the judgment. Sutton v. Walters, 118 N.C. 495, 502.

If the judgment is for a greater amount than, or of a different nature from, the prayer for judgment it is immaterial, when the matter alleged in the complaint and proved justifies the judgment. Knight v. Houghtalling,85 N.C. 17; Johnson v. Loftin, 111 N.C. 319. The prayer for judgment does not bind the plaintiff, as he may have mistaken the relief to which he is entitled upon his pleadings and proof. McNeill v. Hodges, 105 N.C. 52; Jones v. Mial, 82 N.C. 252, and numerous cases cited in Clark's Code, under section 233 (3). Indeed, where the proof is of a greater sum than that alleged in the complaint, the Court below might permit an amendment of the complaint even after judgment. Clark's Code, section 273, and cases cited on page 226 (2d Ed.); King v. Dudley,113 N.C. 167.

In the present case the note in suit was for $650 with 8 per cent interest from 5 August, 1889. The payments alleged in the complaint and admitted in the answer were, $50 22 July, 1890; $50 (303) 27 May, 1895, and $500 8 June, 1896. As neither of the first two payments exceeded the interest due at the time the payments were made, the note bore interest from 5 August, 1889, to 8 June, 1896, and should then have been credited with the accumulated payments of $600, leaving a balance of $405.76, with 8 per cent interest from 8 June, 1896. The error does not require a new trial, but simply a modification of the judgment. The plaintiff's error consisted in calculating interest up to the date of payment of $50, 27 May, 1896 (the first payment 22 July, 1890, being equal to interest then due), and deducting the payment. But, as the payment was less than the interest then due, this was improper, as it would simply be allowing interest upon interest. It is only when the payment or a series of payments comes to more than the interest then due that a balance can be struck and a new principal created. Bunn v. Moore, 2 N.C. 279. The judgment is also informal. The amount should be calculated up to the first day of the term at which judgment is rendered (here 15 November, 1897), and the principal thereof should bear interest. The judgment should have been that "the plaintiff recover of the defendant $452.34, of which $405.76 is principal money and bears interest at 8 per cent from the first day of this term till paid." This is the usual and regular form which should be followed, though the form used in this case is not material error.

Each party will pay half the costs of this appeal. Code, sec. 527.

Judgment modified.

Cited: Comrs. v. Fry, 127 N.C. 261, 262; Wilson v. Lumber Co.,131 N.C. 164; Davis v. Smith, 144 N.C. 298; Mershon v.Morris, 148 N.C. 51; Register v. Power Co., 165 N.C. 235.

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