The opinion
Clarkson, J.
Plaintiff’s action against defendants’ intestate was on
contract,
not
tort.
Plaintiff sued on contracts. The jury found that defendants’ intestate owed plaintiff for “board and services $640, boarding horse $120, money advanced $198.50.” The defendants’ intestate died on 1 September, 1924. We think plaintiff was entitled to interest on the contracts from that date and the judgment, as originally rendered, was not erroneous.
In
Lumber Co. v. R. R.,
141 N. C., at p. 192,
Connor, J.,
said: “His Honor gave judgment for the amount sued for and interest, to which defendant excepted. We think his Honor was correct. The theory upon which the plaintiff recovers is that the defendant has received the money wrongfully and the law implies a promise to repay it. The action was originally equitable in its character and founded upon the theory that in good conscience the defendant should repay the money wrongfully received, and from this duty the law implied a promise so to do. We see no reason why the amount should not draw interest. Revisal,
*632
sec. 1954 (C. S., 2309);
Barlow v. Norfleet,
72 N. C., 535 ;
Farmer v. Willard,
75 N. C., 401 . The cases cited by defendant were actions in tort, wherein the jury may or may not allow interest, as they see proper. In this lies the distinction.”
In the
Farmer case, supra,
at p. 403, “It was not necessary for the jury to give interest. The law gives it and the court was authorized to give judgment accordingly.”
Bond v. Cotton Mills,
166 N. C., p. 20;
Chatham v. Realty Co.,
174 N. C., p. 671;
Croom v. Lumber Co.,
182 N. C., 217 ;
Bryant v. Lumber Co.,
192 N. C., 607 .
On the other question presented we may say that the position of the defendants cannot be upheld under well settled law. 1 Freeman on Judgments, 5 ed., part sec. 140, p. 267, quoting Coke Litt., 260a; 3 Bl. Com., 407; Freeman,
supra,
sec. 141;
Moore v. Hinnant,
90 N. C., at p. 165-6;
Creed v. Marshall,
160 N. C., 394 ;
Mann v. Mann,
176 N. C., p. 353, citing a wealth of authorities;
Johnson v. Brothers,
178 N. C., at p. 392.
An erroneous judgment should be corrected by appeal or
certiorari.
See irregular, erroneous or void judgments discussed in
Finger v. Smith,
191 N. C., p. 818.
For the reasons given, the judgment below is
Reversed.