
    
      Thomas E. Searson ads. T. J. Heyward & Co.
    
    Where A dealt with B, and it was proved to be the general custom at B’s store for the customers to allow interest on open accounts for the last year, from the first of January, unless paid by a particular date thereafter, it was held, that such custom, unless expressly or impliedly sanctioned by the party dealing, could not have the effect of an agreement to pay interest. And where an open account, with interest, was recovered under such proof, a new trial was ordered, unless the plaintiff entered a remitter as to the interest. See Holmes vs Misroon, 3 Brevard Rep. 212; Knight vs. Mitchell, ib. 506, Also, Johnson vs. Bennett, ante.
    
    
      Before O’Neall, .J., Gittisonville, Spring Term, 1842.
    This was an action of assumpsit on an open account. The account was admitted, and it was proved that it was the general custom of the store, for all customers, unless they paid the last year’s accounts by April, to allow interest on them from the first of January, when by the same custom they were due; and that the customers had always been in the habit of paying it. No promise (on the part of this particular defendant,) was proved to allow such a charge; but under the proof of the general custom, the presiding Judge directed the jury to sign a verdict including the interest.
    
    The defendant appealed, on the annexed ground:
    Because a general custom, not brought home to the knowledge or consent of the particular, defendant^ cannot support the demand for interest.
    
    Hutson, for the motion. Colcock, contra.
   Curia, per

Wardlaw, J.

What is here called the general custom of the store, was only a particular custom of a particular house, to which no assent of the defendant was proved. In the case of Holmes vs. Misroon, 1 Treadway, 26, 30, 34, 35, 3 Brevard, 212, it is declared to be the settled doctrine of this State, that interest on an open account is not allowed, unless expressly agreed to be paid, or it be proved to have been the custom of the parties to allow it. And the case of Knight vs. Mitchell, 2 Treadway, 668, 3 Brevard, 506, declares that interest is not recoverable on an open account, even where a time is fixed for the pay merit, unless there be an agreement to pay interest, which agreement may be express or implied, and may be implied from the course of trade or dealing between the parties. Had there been proof here that the defendant had dealt with a plain understanding that he was to be charged interest, his agreement to pay it might have been inferred; but it would be overturning a long established doctrine, and increasing the dangerous reliance upon a party’s own books for evidence, which already prevails too much, if any custom of one party, not expressly or impliedly sanctioned by the other, should have the effect of an agreement to pay interest.

A new trial is therefore ordered, unless the plaintiffs will enter a remitter of the interest.

Richardson, O’Neall, Evans, and Butler, JJ., concurred.  