Appellant, Acme Brick Company, instituted this suit in the county court of Dallas county at law, No. 1, against appel-lee Groves-Barnes Lumber Company, on a verified open account, to recover the alleged contract price of $395.25 for the purchase of 9,975 brick. The account itemized the different times, quantities, and price of each delivery of the brick. The petition alleged interest due on the account from the 1st day of January, 1926, at the rate of 6 per cent, per annum. Appellee, J.'A. Turpin, was implead-ed for the reason that the brick was bought for him to go into 'the building of a house he was constructing.- The result of the trial was a judgment on a verdict of the jury in favor of appellant against Groves-Barnes Lumber Company, in the sum of $197.62, and in favor of the lumber company against Turpin for a like sum. This verdict establishes the fact of a partial failure of consideration. Neither the verdict of the jury, nor the judgment of the court, based on this verdict, allowed interest from the alleged date -to the time of the trial.
The pleadings make no issue of the contract price of the brick, as alleged by appellant to be the amount of the verified account. The defenses pleaded by both appellees in their respective answers consisted of a sworn plea of failure of consideration, in that appellant warranted the brick to be of the specific quality designated in the contract of purchase, and an entire failure of the brick to measure up to the warranty.
Assignments of error raise the issues that the evidence is wholly insufficient to form a basis for the verdict returned by the jury, and that the court erred in not allowing interest at the rate of 6 per cent, per annum from January 1, 1926, to the time of trial, on the sum the jury found to be due appellant. These questions are all properly raised and have been carefully considered by the court. We conclude that the verdict of the jury is sustained by the evidence, and overrule all assignments of error on this issue.
The contention of appellant as to interest must be sustained. The court submitted the issue raised by appellees’ pleas of failure of consideration as follows: “If, however, you find and believe from the evidence that the brick in question were not as represented, you will find for the plaintiff only such sum, if any, as represents the value, if any, of the bricks in question at the time of delivery.”
In response to this charge, the jury returned a verdict in the following language: “We, the jury, find that the > Groves-Barnes Lumber Company should pay the Acme Brick
The delivery of the brick, forming the basis of this suit, was made during the month of December, 1925. Appellant makes the contention that under article 5070, R. C. S. 1925, interest should be allowed as a matter of law. The provision of such article which applies to this case is as follows: “When no specified rate of interest is agreed upon by the parties, interest at the rate of six per cent, per annum shall be allowed * * ⅜ on all open accounts, from the first day of January after the same are made.”
This is a suit on an open account, and interest is thus allowed thereon, as a matter of statutory law, without the necessity of a finding as to interest by the jury, unless, as claimed' by appellees, in answer to this contention by appellant, the verdict of the jury, being only for one-half of the amount of the account, must be presumed to have included interest in the sum allowed by the verdict. This contention of appellees is made under a number of authorities, of which St. Louis & S. E. Railway Co. v. Ewing (Tex. Civ. App.) 145 S. W. 1028, may be taken as illustrative. However, when the verdict of the jury is read in the light of the court’s charge requiring the value of the brick to be ascertained at the time of the delivery, which was in December, 1925, and the jury found such value at such time to be the sum of $197.62, it affirmatively appears, beyond dispute, that the jury did not include in the amount of the verdict interest from January 1, 1926. Interest being recoverable as a matter of statutory law, it necessarily follows that the court erred in not including interest in the judgment rendered. This error, however, does not necessitate a reversal and remanding of the case, but the judgment will be here reformed so as to include interest at the rate of 6 per cent, per annum from January 1, 1926, to June 23, 1928, the date of the rendition of the judgment.
In all other respects, the judgment is affirmed.
Reformed and affirmed.