189 Mass. 228 | Mass. | 1905
This is an appeal by the defendant Brooks from a final decree in favor of the plaintiff upon the defendant’s cross bill, in which he claimed a sum due upon an account. The only questions raised are upon the defendant’s exceptions to the master’s report, numbered nine, eleven, thirteen, fourteen, fifteen and sixteen, all his other exceptions having been waived. These exceptions were founded on contentions of the defendant, as follows: First, that the finding that the matters involved in the account were settled long ago, and that there is nothing due the defendant upon them, is erroneous; secondly, that a special error, which entered into the finding, is the master’s failure to allow interest on the items of the account; and thirdly, that there was error in considering the inventories of the estates of t.he persons from whose administrators Brooks derived his title to the account, in each of which inventories there is no reference to the existence of such an account.
The exceptions all relate to a finding of fact, and, inasmuch as there is no report of the evidence, this finding must stand,
The defendant contends that the finding was erroneous because the master did not compute interest upon the items of the account. It does not appear that the master did not take into account an allowance of interest after the account was made up and payment upon it was demanded. He found, from the conduct of the parties, and the payments made, and the transfer of property applied to the account, that the account was settled fully, by payments to the.satisfaction of the claimants. How they dealt with the question of interest does not expressly appear in the report. In the account of March 1, 1893, “no interest appears to have been charged upon the moneys paid from time to time, nor credited upon the moneys received from sales; nor did it appear that at any time thereafter was any such interest charged or credited by either Shedd and Crane or the consignors, the consignors’ p books containing no items whatsoever relating to interest.” ;,We do not find in the report anything which shows that interest was at any time agreed upon, or that the payments were appropriated to interest instead of to principal, or that the payments were not treated as applicable to the principal, so far as to pay it in full. The allowance of interest upon an account of this kind, in the absence of an agreement in regard to it, is in the nature of damages for non-payment of the debt when it was due. The parties are not obliged to insist upon interest on an account after it is rendered, and in many such eases interest is not asked for. If the parties in this case dealt with the principal debt, and payments were made in full settlement of it, any possible claim that might have been made for interest fell with it when it was satisfied. Davis v. Harrington, 160 Mass. 278, and cases cited.
The thirteenth and only remaining exception is, “ to the use of the state of the inventory of the estates of the Treadwell family as evidence against Brooks on the issue of payment.” These were inventories made by the defendant’s assignors. The defendant Brooks acquired no greater rights than they had, and it is not contended that their admissions, while owners of the account, would not be. admissible against him. One of them,
The forms of the different inventories do not appear, but we infer from the report that there is nothing in them, either by reference to assets in the hands of the former firms, or otherwise, which has any relation to this account. If the account were included in a reference to claims of a firm of which the intestate was a member, the failure to refer to it separately would be unimportant. It does not appear that the defendant was injured by the introduction of the inventories.
Decree affirmed.