the penalty to the 1st day of August, 1872. The seventh, eighth and ninth interrogateries propounded to the witness Rogers were designed to elicit the facts respecting the indorsement of the note, which, under the issue joined on the fourth plea of defendant Browne, were a proper subject of inquiry. The objection that Rogers did not disclose the nature of the authority given him by Wilcox is not sufficient to sustain an exception to the deposition. Whether the authority to Rogers was by parol, or in writing, and the exact language by which it was conferred, might have been ascertained upon cross-examination, and defendants below having neglected to interrogate the witness upon those points, it was no objection that the testimony was not as full as it might have been made. It is also claimed that this deposition should have been put in evidence before the plaintiff closed his case, the affirmative of the issue being upon him. But if this should be conceded, the order in which testimony is to be introduced rests in the discretion of the court, and it is no ground of error that the deposition was received after the defendants had closed their case. As to the weight of the testimony, there is no such preponderance in favor of the defendants below as requires that a new trial shall be awarded. The witnesses Wilson and Rogers are opposed throughout, and we know of no rule which requires that the court should accept the testimony of one of them in preference to that of the other. It is true that Rogers does not state that the payments of $63.80 and $90, mentioned by Wilson, were not made, but he was asked to state what payments had been made, by which, under the obligation of his oath, he was required to state all payments of which he had knowledge. Nothing less than this would be the whole truth, and when he answered that the payments indorsed on the note had been made, he should be understood as affirming that there were no others. Independent of this, it is by no means clear that a jury or a court trying an issue of fact is bound to give full credit to the testimony of a party to the suit. Ordinarily, the presumption in favor of a verdict will not yield to the uncorroborated testimony

of a party to the suit, or, at all events, this must be the case when the cause comes up on error. A question of greater difficulty arises out of the stipulation in the note to pay interest, after maturity, at the rate of ten per cent per month. The damages awarded for the detention of money after the day of payment are measured by the value of the money during the time which it has been withheld. This is the reasonable rule of compensation, which restores the plaintiff to that which he has lost by reason of the breach of the contract, and compels the defendant to surrender that which he has gained by the failure to keep his obligation. Beckwith v. Hartford, P. & T. R. R., 29 Conn. 269. In law, the sum thus awarded is regarded as damages for the breach of contract, which, it has been held, may not be regulated by the parties. Talcott v. Marston, 3 Minn. 339; Daniels v. Ward, 4 id. 168.

There is unquestionably a technical difficulty in enforcing a contract for the payment of interest after the same contract has been broken by the non-payment of the principal sum, but this difficulty may be overcome by regarding the interest agreed upon, as damages which the law will award, as a compensation to the injured party. I concede that in this view the parties will be allowed to liquidate the damages to be awarded for the non-payment of money, but to this there can be no objection, where, as with us, there is no law against usury, and the agreement of the parties, as to interest, is expressly sanctioned. Although the authorities are not uniform upon the point, I conceive that the rule, that the parties to a contract for the payment of money may not liquidate the damages to be recovered upon breach thereof, was invented to support the statute against usury. Orr v. Churchill, 1 H. Black. 232.

By our statute the rate of interest is not arbitrarily fixed at ten per cent, but it is declared that such shall be the rate when no other is established by the parties. The theory of the law is, that money may be worth more or less than ten per cent per annum, and that the parties to the contract may determine its value; but if no agreement is made re

specting it, the value shall be ten per cent per annum. Under this statute the parties may determine the value of the use of the money before it falls due, and it would seem that their estimate of its value, after it falls due, should be accepted, as the true measure of damages, until it is shown to be incorrect. The law seeks to indemnify the plaintiff for the loss he has suffered by the breach of the contract, and it is fair to presume that the rate fixed by the parties affords a just rule of indemnity. If, however, the rate of interest specified in the contract greatly exceeds the real value of the money, it is to be regarded as a penalty for the non-payment of the principal sum, rather than a just recompense for detaining it. Where it is clearly apparent that the rate is fixed for the purpose of enforcing payment, and not for the purpose of compensating the lender, there can be no better reason for exacting the penalty, than in the case of a penal bond. Whether the penalty grows with the lapse of time, or is given in a gross sum, the principle is the same. If it is alleged that the interest specified should be regarded as a penalty, evidence of the going rate of interest at the date of the contract should be heard in order that the court may determine the fact. In this the court will not nicely consider whether the rate agreed upon slightly exceeds the going rate, but if the parties have gone far beyond the just valuation of the use of the money, the fair inference is that it was intended as a penalty. These views have not been adopted without consulting numerous authorities bearing upon the subject, which do not proceed upon any uniform rule. These authorities are collected in 1 Am. Lead. Cas. 503, and in the briefs of counsel in the case of Young v. Thompson, 2 Kan. 83. From what has been said it will appear that the stipulation in the note to pay interest after maturity was prima facie sufficient to establish the measure of damages to be recovered for the breach of the contract. If it was, in fact, intended as a penalty to enforce payment of the principal sum, this might have been shown by proof that the going rate of interest at the date of the note was much

less than that expressed in the instrument. No such proof was offered, and therefore the court was at liberty to accept the stipulation of the parties, as establishing the measure of damages. Estimating the damages according to the stipulation in the note, and rejecting the payments which were mentioned by Wilson, as not having been indorsed upon the note, the judgment appears to have been rendered for a less sum than was due upon the note, but of this plaintiffs in error cannot complain.

The judgment of the probate court is affirmed, with

costs.

Affirmed.

BREACH OF CONTRACT — DAMAGES – INTEREST.-The stipulation of parties as to the rate of interest after maturity may be accepted as the measure of damages, provided they adhere to what may be reasonably sufficient to compensate the loss arising from the breach of con tract: Buckingham v. Orr, 6 Colo. 591.

BAKER V. HUGHES et al.

MASTER AND SERVANT — liability of master for injury to servant. A master is not liable to nis servant in damages for an injury received by the lat ter in the course of his employment, where the injury results from the wrongful act of the latter.

Apparently, the driver of a stage-coach has equal authority with one who is employed to solicit passengers, in respect to the number of passengers to be carried, and if the coach be overloaded, and thereby overturned, the driver and the other are equally in fault, and neither one nor the other can have an action against the employers for an injury occasioned by the upsetting of the coach.

PRACTICEpower of court to nonsuit. By statute (9 Sess. 99), the court has power to direct a nonsuit whenever the plaintiff fails to make a case.

Error to District Court, Arapahoe County.

ACTION on the case to recover damages for injuries received by plaintiff, while engaged in driving a stage-coach for the defendants, caused by the upsetting of the coach. It appeared in evidence that Baker, the plaintiff, was employed to drive the coach, which was used for transporting passengers, and that, upon the occasion when the injury was received, the coach was brought out upon the order of one Dykins, who superintended the loading and collected the fares.

That there were nine passengers inside of the coach, and

nineteen upon the outside, which probably caused it to overturn upon quite level ground. There was nothing to show that the plaintiff, in any manner, objected to the way in which the coach was loaded, but one witness testified that, when the passengers were getting upon the coach, the plaintiff cried out "Plenty of room on the top."

The plaintiff was nonsuited at the trial, and prosecuted this writ of error.

Mr. H. R. HUNT, for plaintiff in error.

Mr. B. M. HUGHES, for defendants in error.

HALLETT, C. J. It appears that Dykins was employed to solicit passengers and collect fares, and to direct the movements of the coach, while the plaintiff was employed to drive the same coach. Having authority to fill all the seats designed for the use of passengers, and to direct where the coach should be driven, Dykins was, to that extent, in charge of the coach, and yet the plaintiff, as driver, was also in charge, for he was required, with the aid of the horses, to move the coach to such point as Dykins should direct. In respect to the manner of performing his duty, plaintiff was not under the control of Dykins, nor was he bound to accept a dangerous load at Dykins' command. In the absence of proof upon the point, it cannot be presumed that defendants authorized either Dykins or plaintiff to overload the coach, and both Dykins and plaintiff being present, acquiescing in, if not actively promoting the wrongful act, must be regarded as equally responsible for it. The circumstance that the plaintiff was the driver of the coach, devolved upon him the duty of seeing that it was not overloaded, for the coach could not be safely moved with a greater number of passengers than it was designed to carry. If Dykins was equally chargeable with this duty, the plaintiff was not thereby relieved of responsibility in the premises, nor could he lawfully accept the command of Dykins as to taking passengers on the coach after all the seats were full. If the plaintiff alone had been present at the time