Henry Anderson and another v. Peter Cunningham, 2 Rob. 463

Garland, J. This action was instituted to recover a balance due on a note and open account, of $212 33. The defendant, in his answer, sets up a demand in reconvention of $4000, alleging various errors in the account, and over-charges of interest and commissions. The plaintiffs had a judgment for $81 80, with interest, from which the defendant has appealed. The record shows that the inferior judge greatly reduced the demand of the plaintiffs, but what items were found objectionable he does not inform us ; nor does the testimony, which is very meagre, furnish us any clue.

The counsel for the plaintiffs says 'that the reduction was caused by the rejection of the items of interest and commissions, which were considered illegal. This is very probably correct, as those items amount to about the sum by which the account has been reduced. This part of the case may, therefore, be dismissed, without further remark. But the defendant alleges that there is an error in the account which is palpable, and which, when corrected, will leave a large balance in his favor. There is no doubt of the correctness of the assertion of the defendant.

It appears from the account that, on the 25th of September, 1839, the defendant endorsed and delivered to the plaintiffs, Dakin & Dakin’s note for $519 12, due on the 23d of October following. The plaintiffs gave the defendant credit for the amount of the note, when they received it. The note was protested at maturity, when the plaintiffs charged the defendant with the amount and the costs of protest.

They then brought suit in their own names against Dakin & Dakin, and Bag-gett their endorser, recovered a judgment, and issued an execution, which, on the 11th of January, 1840, was returned satisfied by the sheriff; yet they do not give the defendant any credit for the amount so recovered. Whether they have received the money from the sheriff, does not appear. If they have not, the defendant is not to lose it. This error, being corrected, will leave a balance in favor of the defendant.

The amount recovered of Dakin & Dakin was $529 62, deducting from which the amount allowed the plaintiffs by the judgment appealed from, $81 80, and a balance' will be due from them to the defendant of $447 82, for which he is entitled to a judgment. The other errors complained of are not apparent, and the evidence not having made them so, we cannot apply any corrective. . The judgment of the Commercial Court is .therefore annulled ; and it is further adjudged and decreed, that Peter Cunningham, on his demand in reconvention, do recover of H. and W.

Anderson, the sum of four hundred and forty-seven dollars and eighty - two cents, with interest thereon at the rate of five per cent per annum, from the 7th day of December, 1840, until paid, with costs in both courts. L. C. Duncan, for the plaintiffs. J. Mitchell, for the appellant.