
    Yazoo & Mississippi Valley Railroad Company v. W. C. Craig & Company.
    [71 South. 561.]
    Interest. Recovery.
    
    The rule is that, if interest is not due hy the terms of the contract, hut is simply an incident thereto, recoverable as damages, the payment of the principal is a bar to its subsequent recovery.
    Appeal from the circuit court of Warren county. .
    Hon. E. L. Brien, Judge.
    Suit hy W.. C. Craig & Co. against the Yazoo & Mississippi Yalley Eailroad Company. From a judgment for plaintiff, defendant appeals.
    The facts are fully stated in the opinion of the court.
    Mayes, Wells, May & Sanders, for appellant.
    
      McLaurm $ Armmstead, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

In April, 1909, appellee, W. C. Craig & Co., cotton merchants, filed with appellant, Yazoo & Mississippi Yalley Railroad Company, four claims against appellant for loss on cotton shipped over appellant’s railroad, and in March or April, 1910, appellee filed with appellant a- claim of similar character, which several claims were paid by appellant in February, 1911, the several amounts thereof being, respectively, two hundred and forty-one dollars and eleven cents; two hundred and seventy-six dollars and fifty-three cents; two hundred and fifty-six dollars and eighty-eight cents; four hundred and twelve dollars and seventy-two cents and two hundred and sixty-four dollars and eighty-five cents. All these payments were made by vouchers issued by the appellant railroad company, the vouchers being uniform, except as to 'date and amount, and were as follows:

The Yazoo & Mississippi Yalley R. R. Co. to W. C. Craig & Co., Dr.

BNS 2/6/11 Yicksburg, Mississippi.

F. A. C. Y 52169

1910

February 1 3003 53882 Cotton

For loss on ten bales of cotton shipped from Yicksburg,. Miss., consigned order notify Baltic Mill, Baltic, Conn.

Amount $276.53

Approved for payment:

Comptroller.

Audited:

Auditor of Disbursement.

Received Feb. 25th, 1911, of the Yazoo & Mississippi Yalley R. R. Co. two hundred seventy-six B8/100 dollars,, in full of the above account.

W. C. Craig & Co.

Some months after these claims were settled this suit was instituted in the court of a justice of the peace by appellee to recover of appellant the sum of one hundred and forty-five dollars and nineteen cents, representing interest on these several claims at the rate of six per cent, per annum from the day they were filed with appellant until they were paid. Appellee obtained judgment in the court of the justice of the peace, and, an appeal having been prosecuted to the circuit court, a jury was there waived and the cause submitted to and decided by the judge, who returned a judgment in favor of appellee, from which judgment this appeal is taken.

Leaving out of view the rule announced in Clayton v. Clark, 74 Miss. 499, 21 So. 565; 22 So. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521, the judgment of the court below nevertheless must be reversed; for the interest here sought to be recovered is not due by virtue of a contract providing for the payment thereof, but is simply a legal incident to the original debt (Buckner v. Pipes, 56 Miss. 366), recoverable as damages in an action for the recovery of the principal; and the rule is that, if interest is not due by the terms of the contract, but is simply an incident thereto recoverable as damages; the payment of the principal is a bar to its subsequent recovery (Bennett v. Federal Coal & Coke Co., 70 W. Va. 456, 74 S. E. 418, Ann. Cas. 1913E, 578, 40 L. R. A. [N. S.] 588, and authorities cited therein and in note thereto; 16 Am. & Eng. Enc. Law [2d Ed.] 1033; 22 Cyc. 1572).

Eeversed, and judgment here for appellant.

Reversed.  