
    John W. Cloud v. Smith and Adriance
    Appeal from Brazoria.
    Interest cannot tie recovered on an open account. [2 Texas, 238; 3 id. 490; 6 id. 486; 10 id. 3,33; 12 id. 379,420; 13 id. 280-4, 623; 16 id. 232; 17 id. 105; 21 id. 635.]
    This suit was brought at the spring term, 1843, of the district court of Brazoria county, by the appellees against the appellant, to recover an alleged balance due on an open account. The dealings between the parties seem to have been commenced in 1840, and to have been finally closed in December, 1842. In the appellees’ account for 1840, there is an item of $239.74, charged as the amount of Morgan L. Smith’s account against the appellant, transferred to them. At the close of the year 1840, the appellees, after giving the appellant credit to the extent of the payments made by him during the year, struck the balance then due, and upon that balance they charged him interest at the rate of ten per cent, per annum in their account for 1841. At the close of the latter year, after having again given the appellant credit for considerable sums paid by him during that year, they struck the balance then due, and upon that balance they charged, in closing their account for December, 1842, one year’s interest at ten per cent.
    The plaintiffs below appended to their petition a copy of their accounts against the defendant, commencing in 1840 and ending in 1842, and prayed judgment for the balance which appeared to be then due. The defendant pleaded a general denial of the allegations in the petition; a misjoinder of the causes of action; the statute of limitations; and the illegality of the two items of interest charged in the account. The jury found for the plaintiffs the amount alleged to be due on the account, with interest from the time it was closed and for which judgment was rendered. There is no statement of facts or bill of exceptions in the record.
    Buelcley, for appellant.
    1st. The two items of interest in the account sued on should have been disallowed, because the law did not authorize the charge of interest on open accounts. 4 Laws Texas, p. 8.
    2d. The item of $239.74, charged in the account as having been assigned to appellees by Morgan L. Smith, should have been disallowed by the jury, because it being an unliquidated demand, the appellees could not acquire such a title by assignment as would enable them t® sue in their own name; there was therefore a misjoinder of the causes of action. 2 Stark Ev. 45-76; 1 Esp. Cas. 182; 2 Wend. 413-16, 501; 14 Mass. 107.
    3d. The charge of $239.74 was barred by the statute of limitations, and should have been excluded on that ground.
    4th. The payments by the appellant were all made to the appellees, and they had no right to apply any part of them to the item in the account which was due to Morgan L. Smith, unless expressly directed so to do by the appellant.
    
      J. Webb, for appellees.
    The plea in abatement alleging a misjoinder in the causes of action seems not to have been relied on below. Had it been, it would not have been sustained, because the record shows that the fact upon which it was predicated did not exist. The account upon which the suit was brought is the one of 1842 aloiie, and the verdict and judgment are for the amount of that account and none other.
    It is true, there is in the record a consecutive claim of accounts between the parties, commencing in 1840 and ending December, 1842; but it is manifest that the accounts of 1840 and 1841 had been settled. They were no doubt introduced for the purpose of showing the different settlements that had been made, and to explain the first item in the account of 1842, which was a balance left unpaid on settlement of the account of 1841.
    2d. The item of $239.74, charged in the account of 1840, as the amount due Morgan L. Smith, had been settled by the parties and was not a subject of controversy in the suit; and if the position be true that a chose in action is not assignable so as to enable the assignee to maintain a suit in his own name, it is not applicable to this case. But we contend it is not true. Choses in action, from the highest to the lowest grade, embracing verbal contracts and open accounts, are assignable in equity; and the equitable rule will be applied here when the justice of the case requires it. Maddock’s Ch. 545-67; Chitty on Bills (old ed.), 30 (new ed.), 9; 4 Mass. 323: Chitty on Con. 42; 2TJ. S. Cond. 271; 1 Madd. 41.
    3d. The two items of interest charged are upon the balances left unpaid in the settlement of accounts of 1840 and 1841, and were not a subject of controversy; and the second was liquidated by the statement of the account of 1842, which was not disputed and therefore acknowledged.
    It is not necessary to constitute an “account stated,” that it should be signed by the party charged. A verbal assent or an acquiescence v will make it so. 1 Story Eq. 500; 2 Atk. 252.
    4th. There is no statement of facts in the record, and it will be presumed that the jury had before them the evidence of that acquiescence, and all other evidence necessary to sustain the verdict.
    5th. Forbearance is a sufficient consideration to sustain a promise to pay interest; and a promise to pay interest upon an “account stated” is valid. The presumption that the jury had the evidence of this promise before them is fortified by the fact that they found interest at the rate of 10 per cent, which, being conventional, could only he recovered upon proof that the party agreed to pay it.
   Lipscomb, J.

The appellees brought suit against the appellant to recover the sum, of eight hv/nd/red cmd eighteen dollars and ninety-seven cents, with legal i/nterest thereon from the first day of January, 181(3, until paid, d/ae by an open account for goods, wares, etc. There is no statement of facts, and no bill of exceptions sent up in the record; the account, such as merchants usually mate out, is appended to the petition and may be considered as a part of the record of the case. Several points have been made by the appellants, but most of them are unsupported by the record. If all the evidence had been sent up in a statement of facts, or had been presented by a bill of exceptions, it is probable from the course of the argument that some of them, cut off by not being on the record, would have been sustained. As the case is presented, we must confine our examination to errors that may be apparent on the record. The plaintiffs below allege in their petition, that the sum sued for was due them on an open account. By reference to that account in the record it will be seen that the aggregate amount for which the writ is brought was made out in part, by the addition of interest at the rate of ten per cent.; and the verdict of the jury is for that precise amount, with legal interest from the date to which the account was brought down. The second section of the act to regulate interest will be found to be-in the following words: “ That in all written contracts ascertaining the sum due when no specific premium or rate of interest is expressed, interest shall be taken, recovered and allowed, at the rate of eight per centum per annum from and after the said sum is due and payable.” 4 Laws of Texas, 8.

By the application of the section first cited, it will be manifest that no interest could have been legally recovered on the open account sued on in the court below in this case. The presumption that there was an agreement or contract in writing cannot be indulged, and must be discarded; because it would be repugnant to the plaintiff’s petition, in which he makes an open account the ground of his action. Had there been a written contract, the open account would have been-merged in it, and the suit would have been founded on it. The record shows that ten per cent, has been charged and allowed by the jury, when by the law no interest was recoverable, presenti/ng a case of error apparent on the record, for which the judgment must be reversed. The judgment can be rendered, excluding all interest, if the appellees should wish it so done. If not, it will be remanded.

The appéllant to recover his costs.  