
    John R. Kimbrel vs. James D. Glover.
    
      Interest — P leading— Contract.
    
    In an action against an agent to recover the price of an article sold by the agent for the plaintiff, interest may be recovered.
    Interest may be recovered on a count for money had and received.
    B and C agreed with A to sell a negro belonging to A, and to apply the proceeds to a debt due by A, for which B and C were sureties, and the balance to any demands held by B against A. Amongst the demands held by B against A was a sealed note which, after the agreement, he assigned to a third person. B died, and in an action by A against C, survivor, to recover the price of the negro which had been sold, held that C could not set-off the amount of the sealed note.
    BEFORE WITHERS, J.; AT YORK, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows :
    “Kimbrel sued Glover, survivor of John G. Withers, for the price of a negro, Alfred, which Glover and Withers purchased from Kimbrel, in the lifetime of Withers, for the sum of eight hundred and fifty dollars. Glover and Withers were sureties of Kimbrel, on a bond given to the Commissioner in Equity of York District, and the contract in relation to Alfred was this: the sureties were to sell Alfred, and the purchase-money was to be applied, so far as it was required, in whole or in part, to the satisfaction of the said bond, upon which they were liable, and also to the reimbursement of Withers, for money which Kimbrel owed him; the contract being made verbally, on the 3d May, 1857. They sold Alfred in June, 1857, for eight hundred and fifty dollars, and the bond had, prior to the transaction between the parties, been put in suit against all the obligors. On the 15th May, 1857, the balance due was five hundred and sixteen dollars and seventy-four cents, and so much had to he deducted, in behalf of Glover, survivor, from the price of the negro. To this, I held, should be added likewise thirteen dollars and forty-seven cents, costs in the case pending. When Kimbrel delivered the negro to his sureties, he owed Withers a sealed note, dated February 21, 1856, for one hundred and twelve dollars and fifty cents; also, an account for ninety-three dollars and thirty cents ; also, certain notes that Bela Sizer and son held against Kimbrel, and which Withers had taken up, amounting to twenty-seven dollars and ninety cents.
    " The effort on the part of Glover, the defendant, was to reduce the claim of Kimbrel, by the aggregate of the three several sums, in the last paragraph mentioned.
    “ I ruled that he could do so as to the account for ninety-three dollars and thirty cents, and the Sizer notes for twenty-seven dollars and ninety cents; but that he could not as to the note for one hundred and twelve dollars and fifty cents, and the interest on it, because Withers, in his lifetime, (when, did not appear,) had assigned and transferred that note to A. B. Springs, who had it at the trial, who claimed it as his property, and in whom I conceived the legal right to recover it against Kimbrel was vested. It appeared to me that if this defendant, asserting the rights of Withers, deceased, should have the benefit of getting out of Kimbrel the amount of that note, he would be getting what belonged to Springs, and what belonged to him, by the act of Withers himself, Who had appointed Springs to receive it, by a perfectly lawful act, one that this defendant could not disaffirm, and which, if he be allowed to disaffirm it, would leave Kimbrel to pay it again to Springs. The jury being so instructed, disallowed to the defendant the note in question; which forms the matter of the first ground of appeal.
    
      “ Then a question arose about the right to Kimbrel to ' have interest on the balance of money arising from the sale of his negro, which be was entitled to recover in tbis action. Without tbe benefit of any authority, and with little argument, (the declaration containing a count for interest,) I directed tbe jury to allow interest on any balance found from tbe institution of tbe action; and tbis forms tbe matter of tbe second ground of appeal.
    
      “ Calculations being made for them according to tbe views I expressed, tbe jury rendered a verdict for the plaintiff for two hundred and thirty dollars and fifty cents.”
    Tbe defendant appealed, and now moved tbis Court for a new trial, on tbe grounds :
    1. Because bis Honor, tbe presiding Judge, erred, it is respectfully submitted, in instructing tbe jury that tbe defendant was not entitled to tbe benefit of a note of plaintiff to J. G. Withers, and interest thereon, to tbe day of tbe purchase of tbe negro man, Alfred, in part payment or satisfaction of tbe demand sued on; and because tbe verdict of tbe j ury disallowing said claim is contrary to law.
    2. Because bis Honor erred in instructing tbe jury tbe plaintiff was entitled to recover interest on tbe amount due to him from tbe time of suit brought; and the verdict allowing such interest should be set aside.
    
      Williams, for appellant.
    1st ground. By tbe terms of tbe agreement between Kimbrel, Withers and Glover, tbe note wbicb Withers held on Kimbrel was satisfied and paid by tbe sale of Alfred. If Withers bad sued Kimbrel be could not have recovered, on. tbe proof made that, in tbe purchase of Alfred, tbe note was accounted for. Withers’ assignee could acquire no higher rights than Withers bad ; tbe note was dead on tbe sale of Alfred, and tbe assignment could not restore life to it.
    Tbe purchase of Alfred was joint, and to permit Withers to appropriate to bis own. nse a note stipulated to go to Kimbrel in part payment of the negro would be a fraud in Glover. He will have so much of Alfred to pay for, which Withers was to pay in said note. Withers and Glover were partners in this transaction. One partner cannot apply the partnership funds to the discharge of his own separate debt, without the assent, expressed or implied, of the other partner. And in such a case it makes no difference, that the separate creditor had no knowledge at the time that the fund was partnership property. Rogers & Sons vs. Batchelor and others, administrators, 12 Peters, 221-233.
    2d ground. No interest should have been allowed. The action was brought to recover the price of a negro sold ; the promise was not in writing, and no particular day of payment was fixed. The presiding Judge is mistaken in saying there is a count in the declaration for interest. It was said on the trial by the plaintiff’s attorney that there was such count; but there is none. There are two counts: one for negro boy, Alfred, sold and delivered; the other for money had and received. It is true, in the bill of particulars, interest is set down; but it is not therein stated from what time it is claimed. Besides, the bill of particulars is no part of the declaration.
    
      Qlawson and Jackson, contra.
   The opinion of the Court was delivered by

Johnstone, J.

Though there may have been no count for interest, the report is to the contrary; and according to the rule of this Court we are to be governed by it.

Were it otherwise, upon the count for money had and received, interest might be allowed.

We concur, also, in the ruling of the Circuit Judge, respecting the note which Withers had transferred to Springs. It was not a partnership demand of Glover and Withers, but was the individual property of Withers. By his transfer, he made it the property of Springs; and if Kimbrel had been made to pay it here, he would not thereby have been exonerated from paying a second time to Springs.

Glover had no right to the money.

It is ordered that the motion be rejected.

O’Neall, C. J., concurred.

Wabdlaw, J., absent at the hearing.

Motion refused.  