
    Peter Schermerhorn v. Admx. of George Perman.
    Interest, is not recoverable on the common count for goods sold and delivered. The agreement to pay interest, or circumstances from which such an agreement may lie implied, must be set out In the declaration; and the absence of a count, selling forth such agreement, express or implied, is not supplied by a charge for interest in the bill of particulars.
    Tried before the Recorder, in the City Court of Charleston, at November Term, 1830.
    Assumpsit. The declaration contained the common indebitatus counts for goods sold and delivered, money paid, lent, advanced, had and received, &c. — and the bill of particulars con-, tained a charge, for interest on the principal of the debt. The account was proved, and a witness was called to establish the plaintiff’s right to interest; but his testimony was objected to, and the objection was sustained by the Recorder. The plaintiff took a verdict for the principal; and now moved the Court of Appeals to reopen the verdict, with leave to introduce evidence to establish his right to interest.
    His Honor, the Recorder, reported the reasons of his decision as follows:
    The general rule I take to be this: Where the damages necessarily result from a breach of the contract, as interest on a bill of exchange, they need not be set out in the declaration; but where the recovery of interest, or other damages, depends upon a special contract, or on circumstances to be proved by the plaintiff, from which a contract may be inferred, it is necessary to declare specially, in order that the defendant may be apprised of the fact, intended to be proved: 1 Ch. PI. 332. Interest is not recoverable, as a matter of course, on an account for goods sold and delivered; but it may be recovered, if there be a count for interest, for there the defendant has notice of the claim, and may come prepared to rebut it.
    Nor is interest recoverable on the money counts: Walker v Constable, 1 Bos. & Pul. 306, and Tappenden v. Randall, 2 Id. 472. It is true a contrary rule prevails in New York: Pease v Barber, 3 Caine, 266. But we have adopted the English rule, as appears from the case of Smith v. Taylor, cited in Goddard v. Billow, IN. &M. 57.
    
      The question now under consideration is, I think, settled in this State by the case of Rice ». Hancock, Harp. 395, where it was ruled, that the plaintiff cannot recover interest on the common count, where there was a special contract: A fortiori is he 1 precluded, when the contract is matter of inference from circumstances, as the course of trade, dealing between the parties, &c.
    Samuel Prioleau.
    M'Crady, for the motion.
    Thompson, contra.
    
   Johnson, J.

delivered the opinion of the Court of Appeals.

We concur in the opinion of the Recorder: The case of Rice v. Hancock appears to us to have concluded the question here raised. The bill of particulars, filed with the plaintiff’s declaration, exhibited nothing more than an account for goods sold and delivered, to which the interest had been added; and the evidence given on the trial is understood to have been confined to this account. An account for goods sold and delivered, it is conceded, does not carry interest: If the plaintiff was intitled to recover it, it must have been in virtue of some special agreement, or other circumstance, which ought to have been stated in the declaration, to enable the defendant to meet it with proof. The want of it is not supplied by the bill of particulars, and the evidence was therefore properly excluded.

Motion refused.  