We do not see, in the numerous exceptions taken by the defendant Humphrey, any reason for disturbing the verdict in this case.
1. Both defendants appeared by the same counsel, and filed an answer denying all the allegations of the declaration. At the trial the counsel withdrew the appearance for the defendant Hursell, but he was not defaulted. We do not think that the counsel for Humphrey could claim, as a matter of right, that Hursell should be defaulted, so as to preclude the plaintiff from the right to try his case in the manner in which he had prepared it upon the pleadings as they stood at the commencement of the trial. It was competent for the court to permit him to prove the liability of Hursell, and for this purpose the declarations of Hursell excepted to were admissible. The jury were carefully instructed that these declarations were not evidence affecting Humphrey.
2. The evidence of the consideration of the note in suit, and of the statements made by Humphrey, at the time the note was given, was admissible against him. It had some tendency to show his relation to the transaction, and thus bore upon the question whether he was liable as a maker of the note.
3. The plaintiff called Hursell as a witness, and he was entitled to contradict him, and to show that he had made at other *70times statements inconsistent with his present testimony. St. 1869, o. 425. For this purpose the statement by Hursell in the articles of copartnership between him and Gould, to the effect that the business had theretofore been carried on by Hursell and Humphrey, was competent. This was a statement inconsistent with the present testimony of Hursell, who testified at the trial that Humphrey was never a partner or engaged in business with him. The circumstances of the statement offered were mentioned to the witness, and he was first asked whether he had made such statement; it was, therefore, admissible under the statute.
4. The exhibits marked A, B, O and D were admissible against Humphrey. They were all either signed or written by him, or by his procurement, and had some tendency to show that he was at one time a partner of Hursell.
5. Upon the testimony above referred to, the court properly refused to rule that there was no evidence to warrant the jury in finding that the note in suit was the partnership note of Hursell and Humphrey. But this question is not material. The jury have found specially, that Humphrey promised to pay the note, knowing that demand for payment was not made on Hursell at its maturity, and that notice of non-payment was not given to Humphrey as indorser. This finding, if it can be sustained upon the evidence,' entitles the plaintiff to judgment against Humphrey, if his relation to the note was only that of indorser.
6. But the defendant asked the court to rule, that there was no evidence to show that Humphrey knew, when he made the promise to pay the note, that payment had not been demanded of Hursell at the maturity of the note. The court rightly refused this ruling. In his written answers to interrogatories proposed to him by the plaintiff, Humphrey states that he knew “ that the note had not been protested.” It was for the jury to construe this admission, and to decide whether he intended to use the word “ protested ” in its literal, technical meaning, or in a more enlarged and popular sense, including demand and notice. This statement, taken in connection with the admitted fact that Humphrey knew he had not received notice of non-payment, with the evidence tending to show that he was a partner with *71Hursell when the original consideration of the note arose, and with the proof of his intimate relations with Hursell since, and of his unconditional promise to pay the note, was sufficient to justify the finding of the jury.
7. One question of practical importance, as to the amount of Humphrey’s liability, remains to be considered. The rate of interest specified in the note is ten per cent., and the plaintiff claims interest at that rate since the maturity of the note. We are of opinion that he is entitled to recover it. The legal rate of interest is six per cent., in the absence of any agreement for a different rate; but it is lawful for parties to contract to pay and receive a different rate, and when the agreement to pay a greater rate is in writing it can be recovered by action. St. 1867, c. 56. In the case at bar, the defendants have agreed in writing that the rate of interest for the use of the plaintiff’s money shall be ten per cent. The plaintiff recovers interest, both before and after the note matures, by virtue of the contract, as an incident or part of the debt, and is entitled to the rate fixed by the contract. Ayer v. Tilden, 15 Gray, 178. Morgan v. Jones, 8 Exch. 620. Keene v. Keene, 3 C. B. (N. S.) 144. Miller v. Burroughs, 4 Johns. Ch. 436. Exceptions overruled.