
    Charles Chevallier v. Christopher Y. Buford
    Appeal from Nacogdoches County.
    Prior to the acts of the 18th and 20th January, 1840, adopting the common law and regulating interest, the legal rate of interest was five per cent, on contracts made in Texas.
    When a note was made payable “ in Tennessee or Alabama money or its equivalent,” and the time for its payment had elapsed without any tender or offer to pay in such currency: Seld, that the debtor had lost his alternative privilege and the demand had become absolute for the value of the “Tennessee or Alabama money; ” or, in the language of the contract itself, for its “ equivalent ” in money. [Ante, 89, 246; 6 Tex. 278; 19 id. 238].
    At the September term, 1840, Buford sued Chevallier on a promissory note of which the following is a copy:
    “On or before the first day of June, 1839, I promise to pay to Christopher Y. Buford, or order, the just and full sum of three bun-dred and twenty dollars in Tennessee or Alabama money or its equivalent, for value received of him, this twenty-ninth day of September, 1838. (Signed) Chaeles Ohevalliee.
    “Test: William M. Heeling.”
    The defendant pleaded a failure of consideration. On the 8th of November, 1843, a verdict was rendered by the jury in favor of the plaintiff for $300.80 principal and interest, at the rate of eight per centum, and upon this verdict judgment was entered for $300.80 principal, and $104.87 interest, at eight per cent.
    
      I. E. Lewis, for appellant.
    There is manifest error in the verdict and judgment in this, that they are contrary to law and evidence. It is a well established principle of the law, that the lex loci, or law of the place where the contract is made, is to govern as to its construction and validity; and it is equally well established that the interest chargeable upon a contract is as much a part of the contract as the principal itself. The note sued upon fell due on the 1st day of June, 1829, and at the time of its execution as well as maturity, the laws of Mexico governed and regulated the rate of interest here. It was not until the year 1840 that the act “ to regulate interest ” was passed by the congress of the republic of Texas. The legal interest of Mexico, as has been judicially ruled by this court, was Jive per centum per annum, where no conventional interest was stipulated in the contract. It was error, therefore, for the jury to find eight per cent, interest, and still more erroneous for the court to render judgment for eight instead of five per cent., which was the legal interest, if any could be charged.
    There is further error in said judgment in this, — fit should have been rendered in the alternative, for the Tennessee or Alabama money, or its equivalent in gold or silver, so that the party could have availed himself of his contract (which under the civil law he was entitled to) by specific performance, if he chose, or pay the equivalent. The judgment must follow the contract. Bice v. Powell, Dallam Dig. p. 413.
    It is error for a jury to find a verdict and the court to render a judgment for illegal interest. Huff v. Polger, Lamb & Co. and Trott v. Patton, Dallam Dig. pp. 522 and 530.
    The judgment does not follow and correspond with the verdict, and should therefore be set aside. 5 Martin, 306, 390; 5 N. S. 449, 462; 7 id. 225; 8 id. 123, 863.
    
      J. Pinclmey Henderson, for appellee.
    In answer to the first point made by appellant, it is sufficient to say that if the verdict and judgment was not warranted by the law and facts, it is too late now to object. He should have moved to set aside the verdict, or in arrest of judgment, in the court below. The record shows that no objection was taken to the verdict or judgment, but an appeal prayed and taken, which has afforded the appellant all the delay he anticipated. Had the appellant pursued the proper and only legal course (if this objection to the verdict and judgment is valid), the judgment would have been arrested below and the delay and costs consequent upon this appeal avoided. 9 Mo. 197.
    The case of Hice v. Powell referred to by appellant’s counsel, in support of his second objection, does not sustain the same, but expressly decides to the contrary. It is there declared that a “ pecuniary judgment or decree can be given alone for a sum or sums in the currency of the constitution,” to wit, gold and silver. If the defendant below refused or neglected to pay the Alabama or Tennessee money at or before the maturity of the note, the plaintiff’s right to sue for and recover gold or silver became absolute. It was converted by the defendant’s refusal to pay in the “ alternative ” at the time agreed upon, into a moneyed demand, if it was not such originally. But I contend that the plaintiff had a right, from the face of the note itself, to demand gold and silver in payment, when the note matured, inasmuch as by the constitution of the United States, which this court now judicially knows, nothing was “ money ” in Tennessee or Alabama, but gold or silver.
    Should this court determine that the judgment is erroneous, in having been entered for too much interest, and that the appellant can, bv objecting to it here for the first time, be entitled to its reversal, then it is contended that the judgment should be reformed and corrected here, and the court below ordered to enter up judgment for the proper amount.
    The facts of the case were stated by the court.
   "Wheeler, J.

Repeated decisions of this and the late supreme court founded on the laws of Spain, in force prior to the acts of 15th and 20th January, 1840, 4 Stat. p. 4, see. 2; id. p. 8, have settled that upon contracts made in this country prior to these statutes, the legal rate of interest was five per cent.

In computing interest at eight per cent, the judgment then is erroneous. But the appellee, having released the excess above legal interest upon the principal sum found due by the verdict, we are required to revise the judgment: and then to proceed to give such judgment as the court below ought to have given, had the release been filed in that county (4 Stat. 81, sec. 19, 1 Acts State, 379, sec. 133), unless the judgment be in some other respect erroneous.

The only remaining error assigned is that “ the judgment should have been rendered in the alternative, for the Tennessee or Alabama money, or its equivalent in gold or silver.

This objection is untenable. The verdict appears to have ascertained the value of the “ Tennessee or Alabama money ” embraced in the note, and for such value the judgment was rendered. The appointed time of payment having elapsed without any tender or offer to pay the Tennessee or Alabama money, the debtor had lost his alternative privilege; and the demand had become absolute for the value of the “ Tennessee or Alabama money,” or, in the language of the contract itself, for its “ equivalent ” in money. In this respect the judgment was rendered rightly and in accordance with the opinion of this court in Fleming v. Nall and Roberts v. Short, decided at the present term.

Eor as much then as there was error in the judgment of the court below, in giving interest at eight per cent, upon the principal sum by the verdict therein ascertained; and it appearing to the court that the excess above five per cent, interest in said judgment was and is for more damages than the plaintiff below hath demanded by his suit (4 Stat. p. 91, sec. 18) and the said plaintiff by his attorney, Barry Gillespie, in open court having released such excess; proceeding thereupon to render such judgment as the district court ought to have given had the said release been filed therein; it is considered that the appellee recover of the appellant the sum of three hundred 81-100 dollars principal, and one hundred and sixteen 25-100 dollars interest, being at the rate of five per cent, per annum upon said principal sum from the maturity of said note, and making together with said principal sum the aggregate sum of. $417.05; and that this judgment be certified to said district court with instructions to proceed in the execution thereof.  