dissenting.
This is a suit instituted by the appellee, Blackshear, to recover the amount due him for lumber, sold and delivered to appellant, Milton.
The principal question is as to interest and the rule which should prevail in cases of this kind. The proof is, that “ the custom of the mill was, when there was no other contract, the price of lumber was eight dollars per thousand, cash, or when called for during the year, or if paid by the end of the year — otherwise ten dollars per thousand.” Defendant said he would pay cash; that defendant called for his account; that witness told him that Mr. Blackshear made out the accounts from the books. Another witness testified that he, as the agent of Blackshear, *174informed defendant, in January, that he had the books in which the lumber accounts were kept, to collect the accounts due; that defendant informed him, if witness would bring the account in at any time within three days he would pay the amount, which was $8 per thousand; that previous to that time the account had not been made out from the books. Another witness says, he presented the account some time in 1856, at $10 per thousand, and defendant refused to pay it, but tendered witness the money at $8 per thousand. Defendant paid promptly the other accounts charged at $8 per thousand, sold in 1856. On this evidence the Court instructed the jury, “ that if they find for plaintiff, they will allow interest upon the amount which they may find to be due him from the time the money was due and payable by the contract; otherwise they will allow interest from the time of the institution of the suit.” The Court below seems to have been of the opinion that there was a contract fixing the time of payment for the lumber. Their charge is clearly predicated upon this assumption, and the j,ury found their verdict accordingly. If there was such contract, it is to be found in the expression of the witness just stated, as to “the custom of the mill;” for there is no proof elsewhere of any agreement as to price. We may infer that the witness designed to say, it was the custom of the owner of the mill to make the charge. The enquiry then arises, does a habit of the owner of an article create a liability on the part of purchasers to pay the price he may thus charge ? Most clearly not. It may not be denied that custom will sometimes influence a .contract by adding stipulations to it, and by controlling and varying the meaning of the words. But, to entitle it to this effect, it must “ fall within the reason of the rule, which makes it a part of the contract; and it comes within this only when it is so far *175established and so far known to the parties that it must be supposed that their contract was made in reference to it. Nor this purpose the custom must be established, and not casual — uniform and not varying — general and not personal — and known to the parties.” — 2 Parsons on Cont., 48, 53. “ As a general, rule, the knowledge of a custom must be brought home to a party who1 is to be affected by it. But, if it be shown that the custom is ancient, very general and well known, it will be often a presumption of law that the party had knowledge of it — although, if the custom appeared to be more recent and less generally known, it might be necessary to establish by independent proof the knowledge of this custom by the party.” — 2 Parsons, 56; 4 M. & W., 211; 5 Adolph. & Ell., 302; 1 B. & Ad., 505.
In the case of Stevens vs. Reeves, the effort was to apply the usage of a factory to an individual and the particular contract before the court. “ There was no stipulation for any particular time, so that there is no express or implied contract that he would remain for any certain time, unless such contract is to be implied from what is set up in evidence as a usage of this and the neighboring factories, that all who are employed shall be held to remain until a fortnight after they give notice of an intention to quit. In order to make this a part of the contract, as the usage is a pa/rticula/r one and not a general custom, it should have appeared that the defendant knew of the usage when he entered upon the work, or before he left it. This is required in order to give effect to the particular usage, so as to operate upon a contract.” — 9 Pick., 200; 2 Wend., 501.
In another case, decided by the same intelligent Court, they say, that “ usages of banks and other public institutions, and sometimes of individuals, may be legally proved, is well settled; and when such usages are known to the-*176parties, and business is transacted with reference to them, they enter into and form a part of the contract. But the usages of individuals cannot affect their contracts, unless it appear that the usage was known to the persons with whom they contracted. The usage is an independent fact, which, if proved, could not avail the plaintiffs, unless they would also bring a knowledge of it home to defendant.” — Loring vs. Gurney, 5 Pick., 17; 3 Comstock, 502.
Rejecting from our consideration the evidence as to the usage, there remains but an open account for lumber sold by plaintiff to defendant, the only evidence as to price in the record being that ten dollars per hundred was claimed to be due by plaintiff and eight dollars paid on a like claim by defendant. The claim of plaintiff was then for as much as the lumber was worth, that amount to be assessed by the jury — a claim for unliquidated damages. The Court erred, then, in giving an instruction to the jury, assuming the fact of proof of a contract as to price. There is no pretext, then, for the claim of interest, except from the time of demand or the institution of the suit, and only on the amount of lumber at $8 per thousand. The English and American authorities are all agreed in this. — Chi tty on Contracts, 504, notes. The rule is well settled, that interest is not recoverable on running or unliquidated accounts, unless there is an agreement, either express or implied, to pay interest. — 6 Johns. Chy., 45; 2 Wend., 413, 501.
“ The law does not give interest in such a case, (it was of goods sold and delivered,) and it can only be recovered when there was either a stipulated term of credit, which has expired, or an agreement, either express or implied, to pay interest.” — Esterly vs. Cole, 3 Coms., 503; 1 Am. Lead. Cases, 352.
The American Courts hold, that interest may be given *177on such a claim after demand of payment, or the account is liquidated that is rendered-and no objections made to it, and if no special demand after the commencement of the suit. — 2 Parson’s on Cont., 381; 12 New Hamp., 484; 11 Wend., 478; Am. Lead. Cases, 353.
And this would comport with right and justice in the case before ns, even if the custom as to the price were proved; for the evidence was that defendant called for his account before the expiration of the year, (we may reasonably infer for the purpose of payment,) but it was not furnished him, so that he was not in default in not paying, but the creditor, in not giving his bill and information as to its amount. To allow him, under such circumstances, to enlarge the price so greatly as to add two dollars a thousand, and give interest on this increased sum likewise, is going to an extent far beyond the most liberal of any of the authorities.. “ The decisions of the courts are greatly wanting in harmony, especially the American,” it is said, “ each State having a rule for itself, so that it is venturing too much to declare what is the American law on the subject.” I do not assent to this proposition, and a.more careful examination of the cases decided would, I think, with due deference, have led the Court to the very opposite conclusion. It is to be noticed, that there is no branch of the law more various and extended, accommodating itself to every difference of aspect in which a case may be presented, more and more intricate as the expansion of commerce during the last century may have produced such a result. To meet this phase and change, and the cases arising, and to dispose of them satisfactorily — to apply extract and illuminate the rules and principles, so as to constitute a system founded in justice and right, has been the high office, province and duty of the jurists and judges that have adorned *178the American Courts — of Marshall, Kent, Story, Washington, Spencer, Savage, Marcy, Livingston, Thompson, Johnson, and others no less distinguished of the Courts of the United States, of New York, Pennsylvania, Massachusetts and others, and most nobly and skilfully has their work been done. That there may not be an exact concurrence of opinion in all respects, is not by any means surprising. The wonder is, that in such a number of cases adjudicated, there is so little conflict, such slight difference of opinion. Can we withhold the expression of our admiration that a system has been constructed so admirable for its wisdom, justice and excellence, and so well suited to all the various exigencies of business — so well adapted to the rendering equal and complete justice to parties ? This tribute will be cheerfully rendered on an examination of the decisions, a summary of which is seen in the first volume of American Leading Cases, 346. I greatly doubt whether the preferred rule of this Court will be found, on comparison, to be in any respect superior “to the bewildering lights ” furnished by these decisions, or that it would be desirable to blot them out to make way for' its better illumination. “ Precedents and rules must be followed, unless flatly absurd or unjust.” Hence it is an imperative obligation on the part of a Court announcing a new law or rule differing from that already established, to demonstrate not only its injustice and impropriety — not only that what is already declared is not law, but also that the rule of their making is the superior and better, the true law. It is not sufficient to say that there is a want of harmony and a painful conflict to justify the making a new rule.
Of all others this last is the most delicate, inasmuch as such action operates on the past as well as the future, thus in all probability imposing hardships upon the' citizen in not knowing how far, and to what extent his rights of prop*179erty, even of life or liberty, may be affected. Not so with a law made by tbe Legislature, wbicb operates for tbe most part only in the future. ¥e have here no analysis of tbe law as declared by other Courts — no presentation of tbe superior claims of tbe new rule. It is said, merely, that in tbe mind of tbe Court, “ it is consonant to sound reason and enlightened policy.” Now it is not difficult to see that this is directly opposed to correct judicial action, and makes tbe ipse dixit of tbe judges tbe sie nolo sie jubeo of tbe magistrate tbe supreme law of tbe land.
By tbe rule made by tbe Court, now for tbe first time announced in its application to tbe present case, tbe property of defendant is taken from him and awarded to plaintiff, not in virtue of an existing law, nor because there are decisions of this or other Courts authorizing it, but because in their view there is another principle, and a law, superior and better. Surely there is no authority for any such action, and it is directly opposed to tbe spirit of our institutions, to tbe Constitution and tbe laws. I feel bound as an act of imperious duty to express my dissent and disapprobation of it. “ Tbe judges, it is well said, are intrusted by tbe Constitution with a portion of jurisdiction, defined and marked out by tbe common law and acts of Parliament, and it is a principle consonant to tbe spirit of that Constitution and wbicb may be constantly traced as pervading tbe whole body of our jurisprudence, that optima est lex quae minimum relinqmt arbitrio judÁeis; optimus judex qui minimum sibi, that system of law is best wbicb confides as little as possible to tbe discretion of tbe judge — that judge tbe best who relies as little as possible on bis own opinion.” Broom’s Maxims, 36.
“ By what maxims are judges of tbe Courts to be guided in their expositions, on what ground will their determina*180tion rest? Are the Courts to proceed upon established principles — to be governed by fixed rules, or, exercising a liberal discretion, to have recourse in doubtful cases to natural principles — to aid and moderate the law according to equitable considerations — to include in their deliberations those cases and circumstances which the legislator himself would have expressed had he foreseen them ? To an English lawyer, brought up with sober veneration of the wise maxim, (so consonant to the spirit of our institutions and so constantly to be traced in the reading the whole body of our jurisprudence,) that optima est lex quos minimum relinquit arbitrio judiéis ; optimus judex qui :minimum sibi / the question would seem to present little difficulty.” 2 Bwarris on Stat. 182; Smith’s Com. on Const. 280.
“ In other countries,” an eminent author says, “ every thing is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model the lornP 8 Black. Com. 827.
In the decisions of other Courts there is no undertaking on the part of eminent judges to make new rules, independent of the authority of their predecessors, but an effort to carry out the common law by the application of its principles to new cases, and modifying the rules flowing from them. Thus in Massachusetts, on this subject, the Court, after a careful examination and analysis of the authorities both English and American, say, “We have no statute regulating this subject, and none is necessary. Upon the principles of the common law, we think that it is clear interest is to be allowed when the law by implication makes it the duty of the party to pay over money to the owner, ■without any previous demand on his part.”- Dodge vs. Perkins, 9 Pick. 388.
In another important case, decided by the Supreme Court and afterwards the Court of Errors of New York, *181the leading case on this subject, there is a masterly examination of all the decisions in this country and in England, more especially by Senator Spencer, whose effort was to educe rules from the precedents and decisions, and not make them, independently of the authorities, against which he most earnestly protested as not being within the province of the judiciary. Rensalaer Glass Factory vs. Ried, 3 Cowen, 419 ; 5 Cowen, 628.
I allude to his opinion more particularly as the Senator was in the minority, differing with the Court as to the allowance of interest in the case before it.
In reference to the subject at issue before us, the Court declares that interest shall not be given where the damages are liquidated. It adopts the American decisions in their most liberal extent, merely giving a different expression, to the principle established, whether with more force, greater precision, more clearness and propriety of expression, remains to be seen hereafter. The Court admits that the verdict does not conform to the instruction of the Court, as it gives too large a sum in damages by nine or eleven dollars, but asserts that this is too small to justify a reversal, quoting the maxim de mvnimis non curat lex, declaring at the same time that plaintiff ought in conscience to remit this sum. On reference to the authorities on this point, it will be found that the Court will not set aside a verdict where the damages are uncertain, but will where the amount is certain. In the early cases, five shillings and twenty shillings were considered too small. 2 Salk, 64-72; Strange, 940-1051; Doug, 509.
In more recent cases, where the verdict was for less than £20, this was considered trifling under a statute of 38 Geo. 3rd. See Tidd’s Practice, 940, This was when the plaintiff obtained a verdict for these small sums. But it is not presumed that these cases have an application to this *182State, where the jurisdiction of the Circuit Courts in all matters, civil and criminal, not excepted in the Constitution, is unlimited as to amount.
In McMillan vs. Savage, the Court held the jurisdiction of the Circuit Courts to extend to forty dollars. 6 Florida, 750.
It may be well doubted whether the ruling of the English Courts as to the smallness of the sum, unless absolutely trifling, is applicable here, except for amounts in which an appeal would not lie from a Justice’s Court.
Under the view I take of the subject, the lumber was sold at $8 per thousand, this being the only evidence of price, and the demand for payment was sometime in 1856, making 31st Dec. 1856, as the period of computation to the date of the judgment — so that an error has been made to the prejudice of plaintiff of $45.25, or thereabouts.
We all concur that the jury erred in allowing too much damages. Ihold that the Court erred in giving to the jury an erroneous instruction, calculated to mislead them, making a verdict against the law and the evidence. In my view there has been a mistrial — no rightful trial of the case on its merits, which have been mistaken by both Court and jury. It is a case where there is no evidence to warrant the finding of the jury, and the Court should have granted the motion for a new trial, although a different cause was assigned and relied upon in plaintiff’s affidavit. If the Court mislead the jury as to the legal effectof certain evidence given to them, it is but justice that the Court ex-officio order a. uew trial.” 4 B. Monroe, 476.