delivered the opinion of the Court:
This was a suit to recover the amount due upon the following promissory note, made by the defendants’ intestate:
Greenville, III., July 8th, 1869.
For value received, ninety days after date, we, or either of us, promise to pay Bradford & Son, or order, one thousand dollars, and if the sum is not paid when due, to pay thereon five per cent per month as damages thereon from the time the same is due, until paid. A. Buie.
On the back of the note are the following indorsements, to-wit: “ Bec’d int. to Hov. 23,’69. Bec’d int. to Jan’y 8, ’70. Bec’d int. to Feb. 8, ’70. Bec’d int. to April 8, ’70, Bec’d §200 April 8, ’70. Bec’d int. to May 8, ’70. Bec’d int. to June 8, ’70. Bec’d $200 July 2, ’70. Bec’d int. to Sept. 8, ’70.”
The maker of the note died on the 15th day of September, 1870. The note was filed as a claim against his estate on the 22d of August, 1872.
On the trial below, it was in evidence that the rate per cent of the interest paid by the maker on the note, according to the several indorsements thereon, was ten per cent per annum, and that the note, by agreement, was extended from time to time as indorsements of interest were made.
. The circuit court rendered judgment for the plaintiffs in the sum of $728.25, which was simply the principal of the note remaining unpaid, with ten per cent interest thereon from September 8, 1870, the time up to which the interest had been paid.
The plaintiffs bring the record here, and assign for error that the court erred in not rendering judgment for the plaintiffs for the unpaid principal of the note, with five per cent damages per month from the said 8th of September, 1870.
Under the decisions of this court, this five per cent per month damages was in the nature of a penalty to secure the punctual payment of the note; and on the 23d of November, 1869, the time when the first payment of interest was' made, the payees might have demanded the stipulated damages for the time that had elapsed since the maturity of the note, but instead thereof, they accepted ten per cent per annum interest for that time, and went on accepting that rate of interest from time to time, for various short periods of time, for nearly a year after the maturity of the note, and so long as the maker lived. This was inconsistent with a claim of five per cent per month as damages. It evidences an agreement to accept ten per cent per annum as damages for delay of payment in lieu of five per cent per month as originally agreed.
As we regard it, the acceptance of the interest at ten per cent for various periods of time after the maturity of the note, was a waiver of the penalty, and the circuit court rightly disallowed the claim for such penalty.
Such being the opinion of a majority of the court, the judgment must be affirmed.
Judgment affirmed.