Wilkinson County MsArchives Court.....Wiltburger, Peter June 1818
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Deb Haines ddhaines@gmail.com December 7, 2005, 5:25 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

PETER WILTBURGER vs. EDWARD RANDOLPH.

Interest may be allowed by the jury on an open account, though there be no 
proof that interest was agreed to be paid by the defendant.

This was an action of assumpsit, upon an account, brought in the Superior 
Court of Wilkinson county, by the plaintiff, a merchant of Philadelphia. It 
appeared in evidence on the trial, that the plaintiff had sold and delivered 
to the defendant, sundry goods, wares and merchandise, at the usual credit. 
Some time having elapsed after the expiration of the credit, agreed upon 
between the parties, and the defendant having failed to pay, the plaintiff 
made out his account for the goods, wares, &c. sold and delivered to which he 
added interest upon the account of the price, for which the goods were sold, 
from and after the day that payment should have been made, according to the 
agreement; that this account was presented to the defendant, who acknowledged 
the correctness of it, and promised to pay it. It was also proved, that it was 
the custom of the merchants of Philadelphia to charge and receive interest 
upon the price of goods, &c. sold and delivered, if payment were not made when 
it became due. Upon this evidence the learned judge instructed the jury, that 
they were at liberty, if they thought proper, to allow interest on the 
account, as claimed by the plaintiff. The jury gave interest, and found a 
verdict for thirteen hundred and twenty six dollars and eighty-two cents, for 
the plaintiff. A motion for a new trial was made, and the following reasons 
assigned by the defendant.

1. For the misdirection of the judge in instructing the jury, that they might 
allow interest on an open account, for goods, wares and merchandise, sold and 
delivered.

2. Because the jury did allow interest on an open account for goods, wares and 
merchandise, sold and delivered, although no interest was agreed to be paid.

3. Because the court left the question, whether interest should be allowed on 
an open account for goods, wares, &c. to the jury when the same was a question 
of law, and proper only for the discretion of the court.

4. Because the verdict is contrary to law and evidence. The question whether 
there ought or ought not to be a new trial in this case was by consent of 
parties and the direction of the judge, referred to the Supreme Court for 
decision.

By the court, Let the motion for a new trial be overruled. The interest was 
properly allowed by the jury in this case.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 20-21.

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