English v. Board of Trustees

6 Ind. 437 | Ind. | 1855

Perkins, J.

Action on an instrument of writing as follows:

“ No. 360. $269 20. Indiana Asbwy University, secretary’s office, Greene asíle, Indiana, April 25, 1840. The treasurer of Indiana Asbwy University will pay to Tisdale Hicks the sum of two hundred and sixty-nine dollars and twenty cents, for carpenter work. By order of the superintendent. Thomas Robinson, secretary J. A. UP

The suit is by English, administrator of Hicks, who has deceased.

Judgment in the Circuit Court for the plaintiff for the amount of the order, with interest added from the 1st of September, 1852, to the date of the judgment.

The plaintiff below thinks he was entitled to interest from the date of the order, and appeals to this Court to obtain it.

It is doubtful, we will remark, whether his complaint was sufficient to entitle him to any judgment; see Spangler v. McDaniel, 3 Ind. R. 275; but as no question has been made upon it, we shall make none.

On receiving this order, it was the duty of Hicks to present it to the treasurer of the university for acceptance or payment in a reasonable time. The Wardens and Vestrymen of St. James Church v. Moore et al., 1 Ind. R. 289.

It was not presented to that officer till September, 1852; and, for this reason, interest was not allowed below.

The excuse for failing to present is, that the holder, Hicks, was told by another person connected with the university, but not with the treasury department, that there were no funds on hand. This is no excuse. Had the demand been made, the proper officer might have provided the funds. Till a demand and refusal of payment, we think the order would not necessarily draw interest. Chitty, in his work on Bills, says, “the drawer or indorser of a bill, or indorser of a note, is only liable to pay interest from the time he receives notice of the dishonor.” “ If, at the time the bill fall due, there be no person legally authorized to receive it, as if the holder be dead intestate, and administration be not taken out, even the acceptor shall be charged with interest only from the time the administrator demands payment of the principal.” Chitty on Bills, 665. “ When interest is made payable by the bill, &c., itself, there is no doubt of its being recoverable as a debt. In other cases it is recovered only as damages for breach of contract; and in such other cases the jury are not bound to give it. If they should be of opinion that the delay of payment has been occasioned by the default of the holder, they may refuse, but otherwise they are bound to find a verdict for interest.” Id. 663.

T. C. W. Sale and J. Broiun, for the appellant. S. Yandes, for the appellees. Per Curiam.

The judgment is affirmed with costs.