Opinion
(22 December, 1900.)
NEW TRIAL — Appeal — Remand — Interest — Computation — Usury — Mandate.
Where the Supreme Court can not tell from the case on appeal by what rule interest was calculated in an account, or whether the calculation was correct, the case will be remanded for new trial.
ACTION by Mrs. A. M. Aiken, administratrix of L. O. Aiken against J. McD. Cantrell, heard by Judge T. A. McNeill, on report of referee, at Spring Term, 1900, of TRANSYLVANIA. From a judgment for defendant, the plaintiff appealed.
W. W. Zachary, for the plaintiff.
No counsel for defendant.
The defendant held plaintiff's intestate's note, and plaintiff insists that the money actually paid and the property purchased by defendant were in excess of the true amount due on the note, and that question depends on a correct calculation of interest. The matter was referred, and the referee's report shows a detailed and itemized calculation of a dozen small credits, and the interest due from one credit to another, and finally concludes that defendant is due plaintiff $63.39. At the hearing, his Honor disregards the referee's calculation of interest and payments, and makes and sets out his calculation of interest and payments in detail with much particularity. He concludes that defendant owes plaintiff nothing, and adjudges accordingly. If the referee and the Judge intended to calculate interest on the general rule, each one was mistaken as to the rule, in that they allowed interest upon interest, when the interest due at the day of the payment was more than the payment. The rule was first laid down (417) in this State in Bunn v. Moore, 2 N.C. 279, and has been ever since followed. Overby v. Association, 81 N.C. 61. If they intended to calculate on the particular rule laid down in Bledsoe v. Nixon, 69 N.C. 89, we are unable to see whether they worked according to that rule or not, as neither the note nor a copy is sent with the record to this Court. We therefore remand, and order a
New trial.