
    McAFEE v. EDWARDS.
    (No. 2162.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 20, 1923.
    Rehearing Denied Oct. 3, 1923.)
    f. Witnesses ($=>255(1) — Though inadmissible as original evidence, account sales could be used to refresh witness’ memory.
    Though an account sales was not admissible as original evidence, plaintiff could refer to it to refresh his memory as to article shipped, price, payments made, etc.
    2. Coéts &wkey;>238(2) — Though judgment bearing excessive interest rate is reformed, costs held to be taxed against appellant.
    Though a judgment made to bear 8 instead of 6 per cent, interest was reformed, the costs will 'be taxed against appellant, where the matter probably would have been corrected, if called to the attention of the trial court.
    Appeal from Wichita County Court; Guy Rogers, Judge.
    Action by F. N. Edwards against J. S. McAfee. Judgment for.plaintiff, and defendant appeals.
    Judgment reformed and affirmed.
    Mathis & Caldwell and Wm. R. Watkins, all of- Wichita Falls, for appellant.
    Nicholson & Felder, of Wichita Falls, for appellee.
   BOYCE, J.

While the account sales was not admissible as original evidence, the plaintiff could refer to it, as he did, to refresh his memory as to the articles shipped, the price, the payments made, etc. H. & T. C. Ry. Co. v. Burke, 55 Tex. 323 (11), 342, 40 Am. Rep. 808; I. & G. N. Ry. Co. v. Startz, 42 Tex. Civ. App. 85, 94 S. W. 213, citing the Burke Case. The evidence thus sustains the judgment, notwithstanding the erroneous method of proceeding in the admission of the evidence. . It is a fair inference from plaintiff’s testimony that the shipments were made om agreed price.

The judgment should have been made to bear interest at the rate of 6 per cent. The error in making it hear 8 per cent, was probably, the result of inadvertence, and would probably have been corrected, if the matter had been called to the trial court’s attention. We will reform the judgment in this respect, but will nevertheless tax the costs of the appeal against the appellant.

Reformed and affirmed.  