45 Ky. 236 | Ky. Ct. App. | 1845
delivered the opinion of the Court.
Although Clay, as the brother-in-law of Rodes, and having confidence in his willingness and ability to reimburse him, may have looked for that reimbursement from him when he made the payments, without even thinking of the liability' of his co-surety to contribute, these circumstances do not discharge or repel that liability. And there being no sufficient ground” for inferring either that these 'payments were made under any special arrangement with Rodes, or with any intefitionof releasing the liability of the co-surety, in case of the failure of Rodes
The credit for the annual value of the slaves to be applied as it would have fallen due in the ordinary course of hiring, up to the sale, and the other credits at the time of the sale. But these credits for waste or loss, are not to be determined with reference to the prices actually brought at the sale. For the evidence is, that they were generally sold for less than their value, from a disposition that they might remain in the use of Rodes, and that most of them were purchased by his mother-in-law, the mother of Clay. But no unfairness is provod on the part of Clay, and it was Goodloe’s business, if he desired the property
The rateable proportion of the proceeds of the sale should have been credited on the amount of Clay’s payments on these debts, at the time the sale money became due or bore interest, which does not appear to have been done; and as under the circumstances of Clay’s pay, ments of these debts, Goodloe rnay not have expected to-be called on for contribution, we are of opinion that he should not have been charged with interest prior to the commencement of this suit. But as he was then apprised of the demand upon him, and was bound then to contribute, we think interest should be charged from that time.
The law on the subject of interest on simple contract debts, is by-long practice, sanctioned by judicial decisions, and to some extent, by legislative enactments, essentially different in this State from what it was in England before our revolution, and perhaps from what it is there even now ; although the claim of interest is much more favored there, both by statute and the Courts, than formerly. Here interest is recoverable at the discretion of a jury, and therefore in like case at the discretion of the Chancellor, upon all liquidated demands, and especially on such as grow out of the payment of money; and we see no reason for excepting the case of a demand for contribution, and especially where interest in that case is recoverable by statute in the remedy by motion. '
We are not satisfied that there was fraud either in the first mortgage to Clay for the land afterwards included in the mortgage of indemnity, or in the sale under that, mortgage. Nor are we satisfied that Goodloe’s liability for these debts was intended or understood to be embraced in the transfer made by Rodes to him and another, of certain slaves, &c. in Arkansas; but the contrary may be