¶1A reargument of the point referred to in the ninth paragraph of the syllabus was granted and briefs have been submitted covering the point more fully than the original briefs.
¶2In their original brief, counsel for respondent said that the right to interest from the date of James' death to the date of the verdict had been conceded. Counsel for appellants denied this, and the briefs on the reargument go into the matter at considerable length.
¶3It now appears that, before the charge to the jury was delivered, a statement prepared by an accountant was presented to the court by respondent's counsel. The statement shows that respondent's share of the earnings of the Brunswick company to February 8, 1924, amounted to $28,856.56. To this was added the amount of the original loan and interest on the total from the date mentioned to the date of the trial. Thus computed, the interest included in the verdict amounted to $4,437.53. On this basis the court directed the jury to return a verdict of $42,044.09, if the verdict went against the appellants, saying:
¶4"The sum is arrived at by necessary computation and from the conclusions of the court, and as the case now goes to you it is conceded that if the court is right, if Harry Andrews is entitled to anything, he is entitled to that sum which includes all the interest that he is entitled to in this case down to the present time."
¶5No exception to this was taken, although specific exceptions to other portions of the instructions were duly noted.
¶6The notice of motion for a new trial was based on several grounds. One was that the verdict was not justified by the evidence and was contrary to law. It was on this ground only that appellants questioned the amount of interest included in the verdict, and it is the ground upon which the assignment of error now under consideration is founded. *190
¶7If the court was wrong in assuming that appellants conceded that respondent was entitled to $4,437.53 as interest, attention should have been called to the misunderstanding or an exception taken at the close of the charge, or specific mention of the error should have been made in the notice of motion for a new trial. Appellants took none of these steps. For this, if for no other reason, they are foreclosed from now attacking the verdict on the ground that too much interest was allowed the respondent.
¶8There is an additional reason for the conclusion. In County of Itasca v. Ralph, 144 Minn. 446, 175 N.W. 899, it was held that when the amount of interest included in the verdict is not questioned in the court below, it cannot be questioned on appeal; and in Legal News Pub. Co. v. Iron Trail Co. 156 Minn. 90,194 N.W. 109, that, if compound interest was included in the judgment, unless the record shows that an application was made to the trial court for the elimination thereof, on appeal to this court appellant cannot complain about the amount of the judgment.
¶9As in the case at bar, the record in each of these cases shows that there was a motion for a new trial, based on the ground that the verdict or decision was not justified by the evidence and was contrary to law.
¶10The statement in the opinion, that in allowing interest there was no infringement upon the statute against compounding interest, was unnecessary. There was no intention to depart from the rule that the death of a debtor does not give to his creditor the right to interest on interest which accrued prior to the date of the probate court's ruling on the claim.
¶11With this explanation and for the foregoing reasons, we adhere to our former ruling. *191