The opinion
Same Case — On a Re-hearing.
By the court:
Preston, J.
After very able and elaborate arguments in this case, we came to the conclusion, that the executor of James McCalop was liable to the plaintiffs, on his letter of credit in their possession, in favor of John B. Scudder, dated the 4th of December, 1849. We inferred a knowledge as to McCalop of its acceptance, from the testimony, the relations of the parties, their proximity of residence, and the intrinsic character of the plaintiffs’ account against the defendants.
McCalop died on the 9th of July, 1850, but the account was continued until the 31st of January, 1851, and the balance to the last date is claimed. But the power of Scudder to raise, and of the plaintiffs to furnish funds, on the credit of McCalop, ceased as soon as his death was known to them.
From their relations, residence, the distinction of the deceased as a planter and landholder, his note as a citizen, and the evidence generally, we infer, that his death was known to the plaintiffs, immediately after it occurred.
The balance due at the death of McCalop, is all that the plaintiffs can claim from his executor; and all payments subsequent to that event, his executor has a right to impute on that balance, no imputation having been made by Scudder.
A cash balance existing against Scudder, when the letter of credit was given, cannot affect the result. It is extinguished ; Scudder having acknowledged the plaintiffs’ account, by which it was merged in account current.
The debit side of Scudder's account when McCalop died, amounted to $43,099 83. The whole payments made by Scudder before suit, amounted to $30,664 38. Leaving a balance due of $12,435 45. Interest and commission, rejected, $312 74. Leaving $12,122 71. And to bring this indebtedness within the very terms of the letter of credit, we have no doubt, that the plaintiffs hold the following notes and acceptances of Scudder, given while it was in existence and payable after the death of James McCalop. The draft of Scudder in favor of McCalop, dated the 8th of January, 1850, and payable the 11th of December, 1850, for $2000. The draft of Scudder in favor of McCalop, in like manner, accepted and paid by the plaintiffs, dated the 8th of January, 1850, and payable the 11th of January, 1851, for $2500. The note of Scudder, endorsed by McCalop, dated the 27th of January, 1850, and paid the 30th of January, 1851, for $4500. The joint note of Scudder and McCalop, *393 dated the 27th of May, 1850, and payable the 31st of January, 1851, for $5500=fH,500.
And, we suppose, these with some smaller drafts, were the foundation of the verdict of the jury; but, that they failed to credit payments made by Scudder after McCalop’s death.
They allowed too much, but erred on the other side, by not allowing interest as prayed for in the petition.
The judgment of the district court is reversed, and judgment rendered in favor of the plaintiffs, against Nolan Stewart, executor of James McCalop, for the sum of twelve thousand one hundred and twenty-two dollars and seventy-four cents, with interest from the judicial demand, and costs in the district; court. The costs of appeal to be paid by the plaintiffs, appellees.