Hoxie Implement Company, Inc. v. Jim Baker, Individually and Dba Baker Harvesting

NO. 07-00-0175-CV IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL D OCTOBER 23, 2001 ______________________________ HOXIE IMPLEMENT CO., INC,

Appellant v.

JIM BAKER, INDIVIDUALLY AND D/B/A BAKER HARVESTING,

Appellee

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FROM THE 84th DISTRICT COURT FOR HANSFORD COUNTY;

NO. 4281; HON. WILLIAM D. SMITH, PRESIDING

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ON SECOND MOTION FOR REHEARING

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Before BOYD, C.J., QUINN and REAVIS, JJ.

Pending before the court is the second motion for rehearing filed by Jim Baker, individually and d/b/a Baker Harvesting. Several issues are asserted but only one necessitates comment. It involves the proposition that we should not have ordered him to pay interest on the amount due Hoxie Implement Company under the open account. This is allegedly so because he had tendered payment of the amount due. We disagree.

Generally, tendering to one’s creditor the amount owed bars the further accrual of interest. J.M. Hollis Const. Co. v. Paul Durham Co., 641 S.W.2d 354, 357 (Tex. App.–Corpus Christi 1982, no writ); see Churchill v. Russey, 692 S.W.2d 596, 598 (Tex. App.–Fort Worth 1985, no writ) (stating that the tender of both principal and accrued interest stopped the accrual of further interest). However, tendering a part of the debt does not. J.M. Hollis Const. Co. v. Paul Durham Co., 641 S.W.2d at 358.

Here, Baker tendered payment of the open account approximately 14 months after the debt became due payable. Furthermore, the amount of his cashier’s check reflected solely the outstanding principal. It did not include the interest which Hoxie was entitled to recover by statute. TEX . FIN . CODE ANN . §302.002 (Vernon Supp. 2001) (permitting a creditor to charge and receive from the obligor legal interest at the rate of six percent per annum when a rate has not been agreed upon by the parties). Consequently, the check encompassed only a partial payment of the debt, which payment was ineffective to bar further accrual of interest.1

Accordingly, we overrule Baker’s second motion for rehearing.

Brian Quinn Justice

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