By the Court This action was commenced in the court below, upon a promissory note which drew no interest before maturity, but contained a stipulation for interest after maturity and until paid, at the rate of five per cent, per month. The Plaintiff applied to the court for leave to amend his complaint, which application was granted, and he amended it by inserting therein the following statement:
“ The Plaintiff further shows that the interest on the said sum loaned by him to said Defendant, viz: the sum of five thousand dollars, was computed on the same at the contract rate, and by mutual agreement of the said parties, at three per cent per month, for the said space of three months, and the amount of such interest, viz: the sum of four hundred and fifty dollars, was included in the said promissory note herein-before set out and particularly described.”
This statement was evidently inserted in the complaint as the foundation for parol proof of what the rate of interest was that the note drew, in order to form a basis for the measure of damages, after the maturity, and default in the payment of the note, under the decision in Mason, Craig et al. vs. Calender, Flint & Co., 2 Minn. R. 350. Whether it would have justified the admission of such evidence or not, it is now unnecessary to determine, as the case of Marston v. Talcott, 3 Minn. Ref. 339, has settled the question, that no greater rate of damages can be recovered upon the breach of money contracts, than seven per cent, per annum, and also for the further reason, that the Defendant’s demurrer did not involve an examination of that point.
After this amendment was made, the Defendant, Daniels, demanded an assessment of the damages in the case; but before the time arrived for the assessment to be made, he demurred to that part of the complaint which had been inserted as an amendment.
*162The demurrer was an abandonment of tbe demand for an assessment of damages, because the decision of the demurrer necessarily preceded any assessment of damages in the case. Were it not so, a notice of this kind could be given at the commencement of any action, and after the case had been litigated through, the Defendant could still claim the full advantage of having given such notice. We think that a due regard to the fitness of order and time, in tbe conduct of causes would require us not to sanction sucb a rule. Tbe demurrer was evidently an after-thought of tbe Defendant.
Tbe matter set up by tbe amendment, if valid for any purpose, was only so, to increase tbe rate of damages that the Plaintiff was entitled to recover upon the breach of the contract. It was not a new, or separate cause of action. The insertion of this matter was the same in effect, as in a case upon a note where the Plaintiff should omit to allege that the note bore interest, and should obtain leave to insert such an allegation by way of amendment. An action for the amount of a note, and the interest which bad accrued upon the same, is but a single cause of action; and an action upon a note, and for the damages resulting from its breach, is equally indivisible. The Defendant, therefore, adopted tbe wrong remedy, when he demurred to tbis portion of tbe complaint. The proper way for him to get rid of it, was by a motion to strike it out. See Bass & Co. vs. Upton, 1 Minn. R. 408, where the court, in a very able opinion delivered by Justice Sherburne, distincly hold that, a demurrer will not lie to a portion of an answer which does not set up a substantive defence.
In the case above cited, a demurrer was interposed to a part of the answer, and a reply to the balance, and the objection was taken, that the demurrer would not lie to less than a distinct defence. Tbe court fully sustain this position, but prove that the matter demurred to, cleaffy constitutes a separate defence, and on that ground alone, entertain the demurrer. The soundness of that decision is certainly indisputable, and the same principle that allowed the demurrer in that case, will exclude it in this.
The court then properly overruled tbe demurrer, not upon its merits, but upon tbe gi’ound that it was not the correct *163proceeding by which to reach the defect in the complaint.
What, then, was the condition of the case ? The Defendants’ demurrer was overruled, and no time was allowed him in which to answer over. The case then stood exactly as if no pleading had been interposed by the Defendant, and the Plaintiff was entitled to enter judgment upon his complaint, and he did so.
The court below has never been called upon to decide the point, as to what measure of damages the Plaintiff was entitled to recover, and has never decided any question in the case, save that the demurrer was improvidently taken; in which holding we fully concur.
There having been no decision by the court below, upon the question of damages, that point is not properly here for review under our holding in Hawke et ux. et al. vs. Banning & Co., and Babcock and Hollinshead vs. Sanborn & French, decided at the July Term of 1859.
It is necessary that the judgment should be affirmed, but as we have no disposition to cut the Defendant off from raising the question, if he may be so advised, we remand the case, without prejudice in that behalf, on account of the proceedings had in this court.-'-
Chief Justice Emmett dissents from the foregoing opinion.