Williams v. Hersey

*20 The opinion of the court was delivered by

Valentine, J.:

1. Biu of exceptions. The defendant in error raises the question, that a certain portion of the transcript filed in this case, and claimed to be a bill of exceptions, is not a bill of exceptions, and is not part of the record of the case> qq,e p]ajn£jfps error make no reply thereto. Said supposed bill of exceptions commences with the words, “Be it remembered,” etc., and then includes various proceedings of the court below, and rulings to which the plaintiffs in error, defendants below, excepted, and then concludes with the following words: “The defendants therefore ask that this their bill of exceptions may be signed by the judge and made a part of the record in this case, which is accordingly done.” Then immediately following these words, and on the same piece of paper, comes a certificate, purporting to be a certificate of the judge and signed by the judge, certifying to the correctness of the matters and things previously set forth in the foregoing paper. The judge does not in his certificate call the paper a bill of exceptions, nor does he in said certificate order that it be made a part of the record. But still, as he knew what it was intended for, and approved it and signed it, we think , it should be considered as a bill of exceptions, and as a part of the record in the case. Considering it then as a part of the record, does the record show any error in this case? In considering this question we shall follow the brief of plaintiffs in error.

We perceive no substantial error in the first instruction given by the court to the jury; and the plaintiffs in error have not pointed out to us where or how it could possibly prejudice their substantial rights.

2. interest on running account. We do not think the court erred by giving the second instruction to the jury. It reads as follows: “Interest cannot be claimed on an open and running mutual ac-1 ° count except by an agreement of parties. It would be strange if each item of an open, running, long-continued, mutula account should separately and on each side *21 draw interest from the earliest inception of each respectively until paid. It would even be strange if the ever-varying balances due on such an account should draw interest without any agreement therefor. We do not think that the statute provides for any such interest. The statute, (Laws of 1871, page 250,) does provide however, that “money due on settlement of accounts from the day of liquidating the same and ascertaining the balance,” shall draw interest. And the statute also provides, that “money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts,” shall draw interest. But the statute nowhere provides that where there has been no settlement, and no delay of settlement by either party, and the account is mutual, and still open and running, that the various items, or ever-varying balances on either side, shall draw interest. The plaintiffs in error claimed $26 as interest; and the judgment of the court below could easily be modified to that extent, if we thought the foregoing instruction erroneous; but we do not think that it is erroneous.

3 proof of value. It was not error for the court to exclude certain evidence which was attempted to be introduced for the purpose of proving the value of certain land, and which merely tended to prove that ’ two certain men at a previous time appraised said land at a certain amount. Said evidence was not the best that could be procured, and was in its nature, hearsay. Better evidence was in fact introduced on the trial.

We think there was no error in “ refusing to give other instructions asked for by the plaintiffs in error.” There was only one instruction refused, and we think that all that was proper to be given was substantially given in other instructions.

The judgment of the court below will be affirmed.

All the Justices concui’ring.