Cochrane v. Forbes
166 N.E. 752
Mass.
1929
Check Treatment
Rugg, C.J.

This case was before us in 257 Mass. 135, and also in 265 Mass. 249. It now is presented by report on the correctness of a clause touching interest in an interlocutory decree entered on January 30, 1929, whereby the defendants were ordered to pay a specified sum "with interest from December 15, 1920.” Other matters included in this interlocutory decree are not reported. The case first was hеre on report as to the correctness of an interlocutory decree. That decree did not sрecify any sum of money to be paid by the defendants to the plaintiffs; it laid down some general principles fоr the adjustment of the rights of the parties; it contained no reference to interest. Hence that subject was not presented to this court at that time. The opinion on that report directed that modifications be mаde in the interlocutory decree and laid down general principles of law by which the sum to be paid by the dеfendants to the plaintiffs ought to be ascertained, but no computations were made and no sum specifiеd. That was left to be determined in the future. The Superior Court had not by its report sought any direction and it received no instruction respecting interest. That court was left free by that opinion to deal according to law with thе subject of interest if and when it should arise. Doubtless it would have been within the power of this court to have made a determination about interest at that time. In these circumstances it .cannot be regarded as having been decided at that time that no interest was to be allowed simply because nothing was said about it. That subject was left open. Vigeant v. Postal Telegraph Cable Co. 260 Mass. 335, 344. Kennedy v. Commissioner of Corporations & Taxation, 256 Mass. 426, 431.

When the time came for entering a decree establishing the amount of the precise damаges due from the defendants to the plaintiffs, ‍​​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌‌‌​‌‌‌​​​​‌‌​‌​​​​‌‌​​​​‌​‍it was the duty of the Superior Court to make such adjudication respеcting interest as law and justice required. Day v. Mills, 213 Mass. 585.

The case came before us the second time on a report wherein among numerous other matters it was recited that *420after the first rescript from this court the bill was amended аnd that the case was heard upon ‍​​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌‌‌​‌‌‌​​​​‌‌​‌​​​​‌‌​​​​‌​‍the decree to be entered pursuant to the rescript. It is manifest frоm the opinion in 265 Mass. 249, that several questions of difficulty were presented on this second report. The interlocutory decree there reported ordered the payment of interest. The question of interest was not discussеd by the court and no reference is made to it in the opinion. That was not a decision that no interest was tо be allowed or that the interlocutory decree was erroneous in providing for interest.

■Without pausing to сonsider the contentions of the plaintiffs as to the effect of silence at that time upon the point, we consider on its merits the question of allowance of interest now reported. ‍​​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌‌‌​‌‌‌​​​​‌‌​‌​​​​‌‌​​​​‌​‍It has been stated to be thе settled rule of this Commonwealth that in a claim for unliquidated damages interest runs from the date of the writ and not from thе date of demand for payment. McGrimley v. Hill, 232 Mass. 462, 464. Childs v. Krey, 199 Mass. 352, 358. That principle in its broad aspect is not of universal applicatiоn because there are numerous instances where interest may be added from the date when damages may be due, in order that reparation may be done for the full injury sustained. Frazer v. Bigelow Carpet Co. 141 Mass. 126. It is not necessary to consider the doctrine of this case because we are of opinion that thé damages here in issue were liquidated and that interest ran from the date of the demand. Liquidated damages with reference to the facts here disclosed mean damages, agreed upon as to amount by the parties, or fixed by operation of law, or under the сorrect ‍​​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌‌‌​‌‌‌​​​​‌‌​‌​​​​‌‌​​​​‌​‍applicable principles of law made certain in amount by the terms of the contraсt, or susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged. Unliquidated damages arе those which cannot thus be made certain by one of the parties alone. Roberts v. Prior, 20 Ga. 561, 562. Chicago, Milwaukee & St. Paul Railway v. Clark, 178 U. S. 353, 372. Canda v. Canda, 92 N. J. Eq. 423, 426. Van Raalte Co. v. Solof Brothers Co. 89 W. Va. 66, 68. Western Lumber Co. v. *421Chicago, Rock Island & Gulf Railway, 180 S. W. Rep. 644, 646. Northwestern Mutual Life Ins. Co. v. Hanger, 200 Ky. 118, 123, 124. Waterman-Waterbury Co. v. School District No. 4, 183 Mich. 168, 176. Norwich Pharmacal Co. v. Barrett, 205 App. Div. (N. Y.) 749, 752, 753. Sanborn-Cutting Co. v. Butler, 91 Ore. 619, 624. Workman, Clark & Co. Ltd. v. Brasileño, [1908] 1 K. B. 968, 981. Wright v. Tacoma, 87 Wash. 334, 353. Laughlin v. Hopkinson, 292 Ill. 80, 86. Lower v. Shorthill, 103 Hans. 904.

In our opinion the damages in the case at bar were liquidated within the principle thus stated. Ford v. Tirrell, 9 Gray, 401. The defendants must have known how much had been paid them by the plaintiffs for oil not delivered and also how much of the money so paid had been paid to the plaintiffs in way of profits. The several factors for determining the amount due to the plaintiffs were known to the defendants at the ‍​​​‌‌‌​‌‌‌​‌​​​‌‌​‌‌​‌‌‌​‌‌‌​​​​‌‌​‌​​​​‌‌​​​​‌​‍time the demand was made on them. The circumstance that, at the time of the demand by the plаintiffs upon the defendants, the principles of law governing the rights of the parties in view of the somewhat comрlicated facts had not been declared, does not prevent the claim from being liquidated. Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218, 226. Reggio v. Warren, 207 Mass. 525, 533. Byfield v. Newton, 247 Mass. 46, 59. The case in this particular stands on a footing no different from an action on a promissory note or other interest bearing contract defended because of some alleged illegality or informality not ultimately sustained.

It was stated in 257 Mass., at page 152, as a recital of a fact found: "The plaintiffs, in December, 1920, made demand for return of the money paid for oil not delivered.” That finding was also made at page 21 of the record before the court in 265 Mass. 249. Under the familiar rule thеse findings of fact must stand. Since the demand was made for payment of a liquidated claim, interest from the date of demand was allowed rightly in the interlocutory decree. Ford v. Tirrell, 9 Gray, 401. Dodge v. Perkins, 9 Pick. 368, 388. Goff v. Rehoboth, 2 Cush. 475, 479. Barnard v. Bartholomew, *42222 Pick. 291, 294. Wilson v. Mitchell-Woodbury Co. 214 Mass. 514, 519. Thomas v. Wells, 140 Mass. 517, 521. See New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 406.

Interlocutory decree affirmed as to the allowance of interest.