Majority
p. 387[No. 4356.] THE BANK OF CALIFORNIA v. E. F. NORTHAM and E. P. WHITMORE, Executors of the Will of HORACE M. WHITMORE, Deceased.
Headnote
Inteeest on Accounts.-—By the statute of 1869-70, p. 699, accounts draw interest only from the day on which they are settled and a balance is ascertained.Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.
Between the first day of January, 1870, and the 9th day of March, 1870, Horace M. Whitmore and Russell Stevens were doing business as partners, under the firm name of The Garcia Flume and Mill Company, and employed the Miners’ Foundry and Machine Works Co-operative to manufacture for them certain machinery. The machinery was made and delivered at various times, and was of the value of two thousand six hundred and twenty-nine and seventy-three oneliundredths dollars. Whitmore died on the 9th' day of March, 1870, leaving a will, in which the defendants were nominated his executors, and they qualified. The Miners’ Foundry and Machine Works Co-operative assigned the account to the plaintiff.
This action was brought to recover the value of the machinery and interest. It was commenced on the 27th day of February, 1872. The court rendered judgment for the plaintiff for the value of the machinery and interest at the legal rate, ten per cent, per annum. The act of 1869-70 provides that ‘ ‘ when there is no express contract in writing fixing a different rate of interest, interest shall be allowed
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at the rate of ten per cent, per annum” * "x" “for money clue on the settlement of accounts, from the day on which the balance is ascertained.” No settlement had been made of the account on which the action was brought.
The defendants appealed,
E. W. McGraw, for the Appellants.
W. W. Cope and S. M. Wilson, for the Respondent.
The court below erred in rendering a judgment for interest on the account sued upon.
There is no other error in the record.
Judgment and order reversed and cause remanded, with an order to the court below to modify the judgment in accordance with this opinion. Remittitur forthwith.