Opinion.
Cooper, J.:Under the instructions of the court, the jury had'but two questions peresented for their decision; one was whether the garnishees had from time to time rendered accounts to the judgment defendants, which had by them been received without objection, thus making the open accounts, accounts stated, which issue the jury evidently found for the plaintiff; and, second, whether upon the accounts as they were rendered by the garnishees, interest being calculated anew and payments being appropriated according to the provisions of our statute, they were indebted to the defendants in execution. The jury found that they were so indebted to the amount for which the judgment appealed from was rendered.
The verdict on the latter question was, we think, clearly against the evidence, which consisted only of the accounts, the testimony of an accountant as to the correctness of a calculation made by him, and the undisputed fact that as to parts of the accounts the rate of interest was regulated by written contracts between the garnishees and the defendants. These written contracts were promissory notes executed at different times by the defendants, two of which bore interest at the rate of 10 per cent, and one at 15 per cent per annum. The one bearing 15 per cent was executed at a time when we had no usury laws, and when any rate agreed on might be lawfully contracted for.
The accounts were long, extending through a number of years, and it is apparent that it would have required several days of constant labor for each member of the jury to make the calculations necessary to reach the verdict; the jury, therefore, as was natural, were governed by the testimony of the accountant, more than by the account itself.
The garnishees claimed that there was a balance due them by the defendants, while the testimony of French, the accountant for the *703plaintiff, was that they were indebted to the defendant in about the sum of $1,200 on the 21st day of January, 1881. The verdict was rendered on the 22d day of February, 1882, and was for $668.72.
As there was no evidence by any witness that this sum or any approximate amount was due from the garnishees to the defendants, the verdict is suggestive of the fact that the jury divided the amount testified to be due by the witness French, by two, and upon the result calculated the interest for the time elapsed from January 21, 1881, to the day of the trial, at 10 per cent, and for this amount gave their verdict. Such a theory much more nearly account for the verdict than does that the jury were guided by the oral testimony, for if they believed the witness French, their ' verdict ought to have been for some amount approximating $1,200. And, if on the other hand, they were governed by the evidence for the garnishees, they ought to have found a-verdict for them. However, this may have been, we are satisfied that the verdict is unsupported by the evidence.
An amount purporting to include all the items of debt and credit with interest calculated and payments appropriated in accordance with our statute and the instructions of the court below, has been filed in this court, and is certified to be correct by disinterested counsel. By this account it appears that the judgment defendants are still indebted to the garnishees in a considerable ' sum. We have not verified all the calculations of interest by computation, but an examination as particular and minute as our time has permitted, has been made, and we are satisfied that it is correct. If counsel for the appellee shall be able to discover any error in this account, we shall be ready to examine any suggestion of error he may make, and will refer the account to our clerk as a commissioner to re-state or verify it. We would have adopted this course before a decision of the cause, but for the accumulation of costs which would follow, and as we think, without changing the result.
The judgment is reversed, and a new trial awarded.