
    Trippe, executor, vs. Wynne.
    1. Tho justice of this case, under the law applied to the facts, has not been reached, and the several exceptions and assignments of error are sufficiently specified to authorize a ruling on the vital point involved, though no motion for a new trial was made.
    2. Where a sum of money was placed in the hands of the defendant by the plaintiff to loan out for her, and he so loaned it, or made use of it himself, and the rate of interest agreed upon and calculated between the parties was twelve per cent per annum up to a certain time and eight per cent thereafter, and an account stated' was made between the parties showing such rates, in a suit for the balance due, in the absence of any plea of usury, the calculation should have been made from the date of the account stated, as fixing the true indebtedness; and it was error for the court to direct a verdict based upon a calculation at the rate of seven per cent per annum from the time the fund was received^
    (a.) If any clear and palpable mistake had been made in the account as stated, or there had been any omission of items clearly and satisfactorily proved, to the same extent and with the same certainty that courts of equity require in order to correc t mistakes, then such mistake or omission could be corrected at law in this state; but in the absence of pleadings to that effect and of clear proof before the auditor of such mistake, or before the jury on exceptions to the auditor’s report, the account stated must stand.
    June 2, 1886.
    • Practice in Supreme Court. Principal and Agent. Verdict. Accounts Stated. Mistake. Auditors. Practice in Superior Court. Before Judge Willis. Muscogee Superior Court. November Term, 1885.
    On April 17, 1S83, Mrs. V. C. Renfroe brought suit against Thomas K. Wynne, and subsequently filed an amendment to her declaration. As amended, the declaration contained three counts, first on an open account fot’ $9,296.00, for money had and received, with interest from April 8, 1872, to March 1, 1880, at twelve per cent, per annum, and from March 1, 1880, at eight per cent, per annum, the rates of interest being fixed by written promise. The second count was on an account stated for $7,455.76, principal. The third count was for $9,296.00,, principal, alleged to have been placed in the hands of the defendant about April 1, 1872, as her agent, to be placed at interest at twelve per cent-., which interest was made, reported to her, and accepted by her as correct up to March 1,1880, when it was agreed that the sum remaining in his hands, as shown by his account stated ($7,455.76), should draw interest at the rate of eight per cent, per annum.
    The defendant pleaded as follows:
    (1.) The general issue.
    (2.) Payment.
    (3.) Set-off. To this plea was attached a bill of particulars, showing a balance in favor of the defendant of $1,139.15.
    At the November term, 1883, a vérdict was found in favor of the plaintiff for $4,200.00, with interest from April 16, 1883. A new trial was granted, and on exception, the judgment was affirmed by the Supreme Court. "When the case again came on for trial, counsel for the defendant moved to refer it to an auditor, which was done, over the objection of counsel for the plaintiff, and exception was taken pendente lite.: The order of reference authorized the auditor to pass upon all questions involved in the case, and to make all calculations which might be required for a proper understanding of the amounts necessary to be ascertained.
    The auditor made an elaborate report, discussing questions both of law and fact, the only parts of which necessary to be stated are as follows:
    That on March 1,1880, the defendant reported, and the plaintiff accepted as correct, the balance on hand as being $7,455.76, which was reduced by subsequent payments to about $6,100.00 in,the spring of 1881; that this was re-' cognized as correct at various times up to January, 1883, and frequent promises to pay were made by the defendant in writing, the rate of interest being stated as twelve per cent. Up to 1880 and eight per cent, since; that the plaintiff acted on the statements of the defendant; and that the account was stated, and no sufficient cause was shown for it to be re-opened and re-stated. He found against the plaintiff on the first count, and for her on the other two counts. He held that the relation of principal and agent existed; that, while such expressions as “ paying ” plaintiff and her asking for the money “owed” her occurred in the correspondence, defendant also spoke of reporting to her; that, construing the letters altogether in the light of the facts, the relation between the parties was not changed; that she acted On defendant’s statements as to the rate of interest the money was bringing, and defendant could not re-state the account; charge himself with only seven per cent, and set-off his payments against the principal with that rate of interest. He held that it was unnecessary to make a calculation of the set-off claimed from the beginning of the transaction, and refused to make certain corrections claimed in the account prior to its statement, and found for the plaintiff $4,281.71, principal, to January 24, 1883, with interest to date. He declined to consider the question of usury, on the ground that no plea of usury had been filed.
    The evidence accompanying the report was voluminous, and need .not be reported in detail. It is only necessary to state that the plaintiff claimed that she had left with the defendant certain sums of money to loan out for her; that he made the reports and statements briefly set out in the report of the auditor; and that he was indebted to her the balance shown by the account stated-, less certain payments. The defendant claimed that he tried to loan the money for a time, and then ceased to do so and made use of it himself. He denied the correctness of the balances reported to the plaintiff, though admitting the writing of such letters or reports and the making of tax returns as her agent, and certain explanations were made as to how the calculations were footed up. The defendant testified to the payments claimed as a set-off.
    On the return of the report, counsel for defendant filed eighteen exceptions thereto, which counsel for plaintiff moved to strike as insufficient. Counsel for defendant moved that the case be again referred to the same auditor for the purpose of stating the account between the parties upon the basis of a calculation of interest on the amount in defendant’s hands and the items of set off at seven pe.r cent per annum.
    The court, without deciding upon the exceptions or motions made, and without accepting or confirming the report, ordered the case to be referred again to the auditor for a new calculation on the basis of allowing interest at seven per cent, per annum. Plaintiff excepted pendente lite, and assigned this action as error.
    The auditor made a second report containing a calculation on the basis of allowing interest at seven per cent., which would make a balance in favor of the plaintiff of $111.57 on April 16, 1883. At the conclusion of this report, he added:
    “ I still report the balance due estate of Virginia C. Benfroe, January 24, 1883, as in my last report, to be $4,290.94, and I make this calculation of interest at seven per cent, in obedience to- the order of the court, referring the case back to me for the purpose of making such alternative calculation.”
    On the filing of the report, counsel for the defendant added two other .exceptions, numbered 19 and 20. The twentieth exception was in effect that the auditor erred in not allowing as a credit a payment of $200.00, sent to plaintiff by defendant on January 18 1873 with interest thereon at seven per cent.
    Plaintiff’s counsel moved to strike exceptions 19 and 20 as being too general and containing mixed questions of law and fact.
    
      Exception 20 alone was submitted to the jury, and they found a verdict against it. The court then adjourned for the day. On the next morning, defendant’s counsel offered eight exceptions as a substitute for exceptions previously filed. These were as follows, and have the entries opposite them made on the margin, as appears below:
    (1.) Because the auditor erred in finding that the relation between Mrs. Renfroe, plaintiff’s testatrix, and the defendant was that of principal and agent, and not that of debtor and creditor. [“ Withdrawn ” entered on the margin.']
    • (2.) Because the auditor erred in finding that the accounts rendered by the defendant to the said Mrs. Renfroe were “ stated account?.” [“ Approved ” entered on the margin.]
    (3.) Because the auditor erred in finding that the accounts rendered by the defendant to the said Mrs. Renfroe were conclusive upon the defendant as to the amount of money in his hands and due by him, and that the defendant was estopped from going .behind these accounts and' showing what amount was actually in his hands and due by him. [“ Approved ” entered on the margin.]
    (4.) Because the auditor erred in taking, as the starting point and basis of his calculations, the balance appearing on the last of the accounts rendered by defendant to said Mrs. Renfroe, to-wit, the sum of $7,455.56 as due March 1st, 1880, and in not taking, as the starting point and basis of his calculations, the amount of money which went into the. hand’s of defendant April 8, 1872. [“ Approved ” enteréd on the margin.}
    (5.) Because the auditor erred in not finding what amount, if any thing,'was due by the defendant, upon a calculation showing how much interest'was actually made by defendant, as agent of Mrs. Renfroe, or upon a calculation showing what, if anything, would be due, charging the defendant with interest on- the money received by him at the rate of seven per cent. [“ Disapproved ” entered on the margin.}
    
      (6.) Because the finding by the auditor that the defendant was indebted to the plaintiff $4,118.73, principal, with interest from 24th January, 1883, is erroneous in this, that it is based upon the accounts rendered by the defendant, and which the auditor finds to be conclusive, and not upon a calculation showing what amount, if anything, was actually due on 25th January, 1883.
    (7.) Because the finding of the auditor that the defendant was indebted to the plaintiff $4,290.94, with interest at eight per cent from January 24th, 1883, is erroneous in this, that it is based upon the accounts rendered by the defendant, and which the auditor finds to be conclusive, and not upon a calculation showing what amount, if anything, was actually due by the defendant on the 24th day of January, 1883. [“ Approved ” entered on the margin.]
    (8.) Because the finding of the auditor that the balance due the estate of Mrs. Renfroe on the 16th of April, 1883, is erroneous in this:
    1st. That the said balance is arrived at by the auditor charging this defendant both with all the interest actually made by him in loaning out the money in his hands, which interest amounts to $360.04, and also by charging this defendant with interest on the money in his hands during the time he was so loaning out said money and making said interest, to-Wit, with the amount of $180.98, interest, and by charging this defendant with interest on said $180.98 from November 19,1872, to April 16,1883, to-wil, $131.95, making in all the sum of $312.93, which is illegally charged as interest against this defendant and for which he is entitled to a credit or deduction in said report. [“ Disapproved ” entered on the margin.]
    2nd. Because the said balance is arrived at by also refusing to credit this defendant with the sum of $200.00, money sent to Macon, as appears in the set-off, and which was actually sent on January-18th, 1873, which amount this defendant says should be credited to him as of that date, with interest thereon from January 18,1873, to April 16,1883, to-wit, $157, and making $357, and -which should have been credited to this defendant; and after giving to this defendant credit for said two sums,'.to-wit, $369.98 and $357, so making $726.98, the auditor should have found that the plaintiff was indebted to the defendant on said 16th of April, 1883, in the sum of $675.40. [“Approved ” entered on margin.]
    Counsel for plaintiff demurred to these exceptions as coming too late ; because they were not classified with exceptions of law and fact; because they were too vague and general; and because they were merely cumulative of exceptions formerly filed. The court overruled the demurrer and refused to strike the exceptions, except the first, fifth and first clause of eighth, “ to which ruling and decision plaintiff duly excepted.”
    Defendant offered no evidence. Plaintiff offered in evidence both reports of the auditor. The court ruled out the first report, “ to which ruling and decision the plaintiff duly excepted.”
    Plaintiff offered in evidence the second report of the auditor and the plaintiff’s'evidénce. The evidence closed, and plaintiff proposed to take a verdict for $4,290.94, with interest from January 24,1883, which the auditor stated in his second report he still found due the plaintiff, as stated in his first report The court ruled out that portion of the second report as based on an erroneous calculation which had been ruled, and ordered a verdict taken for the plaintiff for $111.57, with interest and costs, as being the amount found by the auditor in his second report and not .excepted to, “ to which ruling and decision plaintiff duly excepted.”
    Plaintiff asked to submit the papers to the jury under thé charge of the court. The court ruled that he would not charge the jury at all, and stated to counsel that they could take a verdict for $111.57, with interest and costs, that being the amount found by the auditor in his second report and not excepted to, “ to which ruling and decision plaintiff duly excepted.”
    
      A verdict and judgment were taken for the amount just stated. Plaintiff filed a bill of exceptions, and assigned the following as errors:
    (1.) The reference of the case to an auditor.
    (2.) The second reference of the case to the auditor.
    (3.) The allowing of the substituted exceptions on the part of the defendant.
    (4.) The overruling of the demurrer and motion to strike the substituted exceptions, except as stated above.
    (5.) Holding and trying'the case under the act of 1885, in regard to proceedings before an auditor, and holding that act to be applicable to the case.
    (6.j Ruling out the first report, as based on erroneous calculations.
    (7.) Refusing to allow a verdict 'to be taken for $4,290.94, with"interest from January 24th, 1883, and ordering a verdict for $111.54, with interest and costs for the plaintiff, “ to which ruling and decision plaintiff excepted.”
    The plaintiff died pending the litigation, and her executor, R. R. Trippe, was made a party in her stead.
    R. B. Trippe ; A. A. Dozier, for plaintiff in error.
    Peabody & Brannon ; Smith & Russell, for defendant.
   Jackson, Chief Justice.

From the report of this case at the head of this opinion, it is manifest that the justice of the case, under the law applied to the facts, has not been reached, and that the several exceptions and assignments of error are sufficiently specified to authorize a ruling on the vital point involved, though no motion for a new trial was made below;

It will be seen that, though from an account stated in 1880, as well as from various letters of defendant to plaintiff’s testatrix, the rate of interest agreed upon and calculated between the parties up to 1880 was twelve per cent., the verdict directed by the court allows interest only at seven per cent, for that time; that no plea of usury was "before the auditor or the court, and none appears to have been filed or considered and passed upon; and therefore such direction and refusal to allow the interest at twelve per cent, up to the date of tjie account stated, are clear error. p

We think that the basis upon which the auditor made his calculation in his first report is correct. The account rendered in 1880 is the time from which the calculation should be made, and the sum reached as due by that report as made first by the auditor is the true indebtedness of the defendant to the estate of Mrs. Renfroe; If any clear and palpable mistake had been made in that account as stated, any omission of items clearly and satisfactorily proved, to the same extent and with the same certainty that courts of equity require in order to correct mistakes in their forum, then equity would correct them here, and under our statute, courts of law would do the same thing; but in the absence of pleadings to that effect, and of clear proof to the auditor of such mistake, or to the jury on exceptions to the auditor’s report, that account stated must stand. Certainly when the rate of interest was fixed and solemnly recognized by the agent for the use of the principal’s money at twelve per cent., and her account stated to that effect with and by him, then to change it to seven per cent, with no plea or proof of usury or of facts bringing the case within the laws against usury, is. not to correct •a mistake in the legal or equitable sense of a proceeding therefor. The auditor was right not to consider the same under the pleadings and facts before him.

In a word, the direction of the court to the jury to return the verdict based upon the seven per cent calculation from the time the fund was first received by the defendant, in our judgment, was error, and a newt-rial is awarded on that ground. We see no other material error not included in this point.

Judgment reversed.  