Forniquet et al. v. West Feliciana Railroad Company, 6 Howard 116

Mr. Chief Justice Sharkey delivered the opinion of the court. The defendants in error instituted this suit on a promissory note made by the plaintiffs in error, which had been discounted in the bank. The note was made payable four months after date. As a defence, the account of defendant Forniquet with the bank was introduced to show how much interest had been charged, and the cashier of the bank was also introduced, and sundry questions were asked him, which the court would not allow him to answer, and to this decision of the court a bill of exceptions was taken.

The object designed by the questions propounded to the witness was, to show that the bank had charged eight per cent, interest, when in fact it was authorized to charge only seven per cent, per annum. Its powers in this respect present the first question to be decided, because if eight per cent, was lawfully taken, then of course the questions were immaterial, and the ruling them out would not constitute error.

The language of the bank charter is, that “they shall not take more than seven per cent, per annum upon any of their loans or discounts made upon promissory notes which shall be payable within four months after such loan or discount,” and it is contended that as this note was payable four months after date, and the law gives three days grace, it was not such a note as was intended to be embraced by this clause of the charter, but falls properly under another, by which they were authorized to take eight per cent. In this respect we must look to the intention of the Legislature.

Two rates of interest were established by the charter, seven per cent, for notes having four months to run, and eight per cent, for notes having a longer time to run. It cannot be believed that the Legislature intended by using the term “within four months,” to confine the operation of this clause to notes which would fall short of that time. It must apply to a note made as this was, payable four months after date. Suppose the language of the charter had been adopted, “we promise to pay within four months,” such a note would not have matured until the expiration of four months, and three days of grace.

Could it then have been said that it was not'such a note as the charter meant to provide for? The Legislature must have supposed that they were providing for what is usually called four months paper, and the note on which this suit is brought falls under the name of a four months note. Seven per cent, was thought to be a proper interest for a loan on that time, and if the Legislature had the days of grace in view at all, they must have been considered merely as an incident, as indeed they are.

We can regard it as nothing short of an evasion of the charter, to take a note which on its face will entitle the Bank to but seven per cent., but which by an incident attached by law runs it into a different rate of interest. In the case referred to in 2 Cowen, the court it is true held that for all practical purposes the days of grace constituted a part of the note, and such also seems to be the view taken in the other cases. This may be true, and still it does not afiect the present question.

We are endeavoring to arrive at the true meaning of the charter, and we think the Legislature intended to provide for notes which on then face were made payable four months after date, without regard to the mere customary privilege of the three days of grace. For the purpose of calculating interest the days of grace may constitute a part of the note, but when a note having a particular time to run is spoken of by

an act of the Legislature, the fairest conclusion is that they spoke in reference to the time specified on the face of the contract, excluding any thing extraneous. The interest which a note draws after maturity is said to be an incident, and with equal propriety may the days of grace be said to be incidental. If this be the correct view of the subject, the testimony was improperly ruled out, for if more than legal interest was taken, the defendants, to say the least of it, were entitled to an abatement of something, either the whole or part of the interest.

It was proposed to show the rate of interest by the account of Forniquet with the bank. It was competent to prove the correctness of this account by the cashier, either by showing that it had been correctly copied by the clerk from the books of the bank, or by proving the hand writing of the clerk. The account was offered by the bank, and having been made out by their clerk, they could not require any thing more than his hand writing, and his official capacity, or that he acted as clerk. The judgment must be reversed and cause remanded.