1 Utah 55 | Utah | 1876
delivered the following opinion :
1. The testimony of' Rodford, and the written correspondence of the parties to the record, introduced in evidence, authorized the jury to find, as they did find, that Brigham Young, and the “ Deseret Irrigation and Canal
2. After the parties had rested, the plaintiff called one Armstrong as a witness,'-who .testified that Lawrence had told him that Kimball & Lawrence once had an account against the “ Deseret. Irrigation and Canal Company.” which the “ Trustee-infiTrusthad settled by giving credit on tithing. This was hearsay testimony, and was improper But the Defendant’s counsel objected, for the reason that the evidence was not in rebuttal, and was therefore illegal.” This objection was not tenable, and every other was waived by interposing it. (Jackson v. Hobby, 20 Johns., 357; Norman v. Wells, 17 Wend, 136; Potter v. Dayo, 19 Wend., 361; Elwood v. Deifendorf, 5 Barb., 398; Merritt v. Seaman, 6 Barb., 330; Ballows v. Sackett, 15 Barb., 96; Smith v. Hill, 22 Barb., 656; Newton v. Harris, 2 Seld., 345).
Whether, after the Defendant had rested, to allow the Plaintiff again to introduce evidence in chief, or to confine him to rebutting testimony, was entirely in the discretion of the Court. (People v Mather, 4 Wend., 229; Clark v. Voca, 15 Wend., 193; Morris v. Wadsworth, 17 Wend., 103; Ford v. Niles, 1 Hill, 300; Jackson v. Tallmadge, 4 Cow., 450; Bedell v. Powell, 13 Barb., 183; Peckham v. Lary, 6 Duar., 495; Anthony v. Smith, 4 Bosw., 503; Railroad Co. v. Stimpson, 14 Pet., 888; Lewis v Payne, 20 New York, 58; and 13 Abb.Pr., 1.
3. The letters introduced in evidence-by the Plaintiff after the evidence had- rested,, were part of the res geste, and whether they tended to make out the Plaintiff’s case
It has even been held, though it is not necessary to go to that length here, that “ where one party produces the letter of another, purporting to be in reply to a previous letter from himself, he is bound to call for and put in the letter to which it was an answer, as part of his own evidence.” (Watson v. Moore, 1 C. & Kir., 626; Roe v. Day; 7 Car. & Payne, 705; 1 Greenleaf on Ev., Secs. 108 and 201, and notes.)
4. The Court was correct in charging the jury that ‘‘if-the Defendant did not object within a reasonable time to an account presented to him, his assent may be presumed, and will support an action upon an account stated; and also that, “If when an account is rendered, no objection is made to it, it is to be considered liquidated from the time it is rendered.” (Walden v. Sherburne, 15 Johns., 409; Hall v. Morrison, 3 Bosw., 520; Case v. Hotchkiss, 3 Abb. N. S. 381; Hutchinson v. Bank, 48 Barb., 302; Crane v. Hardman, 4 E. D. Smith, 448; Bainbridge v. Wilcocks, Baldw., 536—3d Circ. Pa.)
5. Prior to the 14th day of February, 1868, there was no Territorial Statute on the subject of Interest, in Utah. At that time it was enacted, “ That it shall not be lawful to take more than 10 per cent, interest per annum, when the amount of interest has not been specified or agreed upon.” (“Laws of Utah, 1868, chap. 13, p. 15.) But on the 19th day of February, 1869, this act was repealed and the following enacted, to-wit : “ That it shall be lawful to take ten per cent, interest per annum, when the amount of interest has not been specified or agreed (Laws of Utah, 1869, chap. 19; p. 17).
The subject of interest is an important branch of jurisprudence, and one that has engaged the best talents of legislators dnd jurists. At common law, interest was not only not recoverable, but the taking of it was severely
In the case at bar the jury found that the account was liquidated on the 12th day of February, 1866. The account therefore carried interest from that date; at what rate, however, and how computed, and whether it carried interest before that date, will...b.e hereafter considered. (Parsons’ Mercantile Law, 252; Klock v. Robinson, 22 Wend., 157; Crosby v. Otis, 32 Maine, 256; Hicks v. Thomas, Dudley, Geo.,318; Vermont &c. R. R. Co. v. Vermont Central R. R. Co., 34 Vt., 1.
“ The old common law rule, which requires a demand.
When interest, as,such, should be allowed by courts as matter of law, and when it may be allowed as damages by juries in their discretion, are questions that have been much discussed by courts and commentators. We are satisfied, however, that in regard to the first of these questions, the rule most firmly founded on. record, and reason, and best supported by authority, is, “ that in actions of contract interest is no longer in the discretion of the jury, but a matter of right, and as essential to legal indemnity as the' principal sum or ascertained value to which it is an incident.” (Sedgwick on Damages, 5 Ed., 432, note 2; Dana v. Fiddler, 12 New York, 40, 50; Reid v. The Rens. Glass Factory, 5 Cow., 587; Van Rens. v. Jones, 2 Barb. 643; Meech v. Smith, 7 Wend., 315; Reab v. McAlister, 8 Wend., 109; Hill v. Allen, 13 Ill., 592; Lush v. Druse, 4 Wend., 313; Van Rens., v. Roberts, 5 Den., 470; Van Rens. v. Jewett, 2 Coms.. 135.)
We are equally well satisfied “ that interest may be allowed in the discretion of the jury, but not by the Court as matter of law, in cases of trover, trespass, or for nondelivery of goods by carriers,'” when the carriers are in fault. (Sedgwick on Damages, 5th Ed., 441, 433, and 429; Van Rens. v. Jones, 2 Barb., 670; Beals v. Guernsey, 8 Johns., 446; Bissell v. Hopkins, 4 Cow., 53; Richmond v. Bronson, 5 Den., 55; Van Rens. v. Jewett, 2 Coms.,135; Gilpins v. Consequa,Pet. C. Ct. 85; 3 Wash. C. Ct.,184; The People v. Gasharia, 9 Johns.,71; Shingerland v. Swart, 13 Johns., 255; Hyde v. Stone, 7 Wend., 354.)
6. The Court also charged the jury, “That if they found for the plaintiff they would find $5,020.27, with
But, on the argument it seemed to be conceded by counsel, that if any interest was allowable, it was ten per cent, per annum from and after-the 19th day of February, 1866, the date of the statute in regard to interest. It is very clear that where interest is allowable, and the contract does not fix the per centage, it is regulated by the statute, if there be a statute. The Court did not name any per centage,. and the charge did not conflict with the principle last stated. (Sedgwick on Damages, 5th Ed., p. 257; Lewis v. Lee, 15 Ind., 499; Hayman v. Sanders, 12 Cal., 107; Provo v. Lathrop, 1 Scam., 305; Van Rens. v. Jones, 2 Barb., 667; Close v. Field, 13 Tex., 623.) This action is on contract, and the Court properly charged the jury, as matter of law, that if they found for the plaintiff, they would allow him interest from the day of the liquidation of the account, even though there was no statute upon the subject at that time. (See authorities cited under the 5th point.) But the Court, with equal propriety, left the percentage to the discretion of the jury. In Davis v. Greely (1 Cal, 432) the Court say, “ Interest is generally regulated by statute, but in the absence of any statute, a reasonable rate may be allowed by way of damages.”
But, might not the Court have held even a stronger doctrine, and instructed the j.ury that if they found for the Plaintiff, then, as matter of law, the Plaintiff was entitled to interest from the day the debt was contracted, without regard to its subsequent liquidation ? It has been held that “ an unliquidated account for money paid or lent, carries interest. Whenever it- is said, therefore, that no interest is -reasonable upon an unliquidated account, an account other than for money lent or advanced, or had and received, must be understood.” (Siotard v.
If the goods advanced were taken in lieu of “a loan” to the Deseret Irrigation and Canal Company, as some of the evidence would seem to indicate, might they not have been regarded as money ? And if so, interest might have been charged for about nine months additional. But there is no need to pass upon this question.
7. Having found for the Plaintiff on the merits of the action, the jury, in their discretion, fixed the interest at ten per cent, per annum before the statute, the same as they allowed after the statute. The rule which they adopted for casting interest was correct. (Connecticut v. Jackson, 1 Johns. Ch R. 17; Deans v. Williams, 17 Mass, 417; Story v. Livingston, 13 Pet., 359; Dunlap v. Alexander, 1 Cranch. Ct., 498.) But they seem to have erred in the process of computing it, and to have allowed the Plaintiff several hundred dollars less than he was entitled to according to the facts found by the jury. Of this the Defendant has no reason to complain. “The Supreme Court may render such judgment as the court below should have rendered.” (Laws of Utah, p. 67, sec. 8.) Instead, however, of adding to the judgment the interest which the jury omitted, we are of the opinion, all things considered, that the judgment of the court below, as it stands, should be affirmed.