Hunt's v. Hall , 37 Ala. 702 ( 1861 )

R. W. WALKER, J.

The note was made payable in Louisiana, and, being silent in respect to the rate of interest, must bear interest according to the law of that State. Dickinson v. Branch Bank, 12 Ala. 54 ; Story on Conflict of Laws, § 291; Scofield v. Day, 20 Johns. 102; Peck v. Mayo, 14 Vermont, 33. It was an admitted fact in'the -cáse,'that the legal rate of interest in Louisiana is five pet cent. Tt is clear, therefore, that if we look alone t'o'th'e -note itself, in connection Vith 'the admitted law of Louisiana, which is silently incorporated into it as one of its '■terms, the defendant was only bound to pay interest at the rate of five per cent.; and on that -hypothesis, the payments proved satisfied the note.

[2,] It is true, however, that although the legal effect of the note was a promise to pay only five per cent, interest; still it was in the power of the parties to modify the written contract, in this respect, by a subsequent verbal agreement, founded on sufficient consideration. — Smith v. Garth, 32 Ala. 373 ; Stoudenmeier v. Williamson, 29 Ala. 569. And under a complaint counting on "the original contract as modified by the. subsequent parol agreement, the plaintiff would be entitled to recover the rate of interest stipulated by such agreement. But, in a suit upon the note itself, it is not allowable to prove a- subsequent change of its terms, and- recover upon the contract as thus modified. That would be, to allege one contract, and recover upon another; which the law will not tolerate. — See Taylor v. Pope, 3 Ala. 190.

While, therefore, it may be ■ admitted, that there was evidence tending to show a subsequent parol agreement, ' whereby the defendant bound himself to pay interest at the rate of eight per cent.--; yet, as the only count in the complaint was upon the note itself, such proof could be of no avail to the,plaintiff. Nor would it help the plaintiff, to show that the ’ defendant had, at different -times, paid interest on the note at the rate of eight per cent. That fact,if established, could not, of itself, operate to change the legal effect of-the-note ; and even if it did, it would not avail the plaintiff in this suit, who can only recover upon the contract alleged, according to which, as we have seen, ■-the rate of interest to be-paid was-five.per cent.

Judgment affirmed.