
    PETER WILTBURGER vs. EDWARD RANDOLPH.
    Interest may be allowed by the jury, on an open account, though there be no proof that interest-was agreed to be paid by the defendant.
    This was an action of assumpsit, upon an account, brought in the Superior Court of'Wilkinson county, by the plaintiff, a merchant of Philadelphia. It appeared in evidence on the trial, that the plaintiffhad sold and delivered to the defendant, sundry goods, wares and merchandise, at the usual credit. Some time having elapsed after the éxpiraíion of the credit, agreed upon between the parties, and the defendant having failed to pay, the plaintiff made out his account for the goods, wares, &c. sold and delivered; to which he added interest upon the account of the price, for which the goods were sold, from and after the day that payment should have been made, according to the agreement; that this account was presented to the defendant, who acknowledged the correctness of it, and promised to pay it. It was also proved, that it was the custom of the merchants of Philadelphia to "charge and receive interest upon the price of goods, &c. sold and delivered, if payment were not made when it became due. Upon this evidence the learned judge instructed the jury, that they were at liberty, if they thought proper, to allow interest on the account, as claimed by the plaintiff. The jury gave interest, and found a verdict for thirteen hundred and twenty six dollars and eighty-two cents, for the plaintiff. A motion for a new trial was made, and the following reasons assigned by the defendant’s counsel.
    1. For the misdirection of the judge in instructing the jury; that they might allow interest on an open account, for goods, wares and merchandise, sold and delivered.
    2. Because the jury did allow interest on an open account for goods, wares and merchandise, sold and delivered, although no interest was agreed to be paid.
    3. Because the court left the question, whether interest should be allowed on an open account for goods, wares, &c. to the jury when the same was a question of law, and proper only for the discretion of the court.
    4. Because the verdict is contrary to law and evidence. The question whether there ought or ought not to be a new trial in this case was by con sent of parties and the direction of the judge, referred to the Supreme Court for decision.
   By the Court.

Let the motion for a new trial he overruled. The in terest was properly allowed by the jury in this case.  