| Mass. | Jun 18, 1902
This is a writ of error on a judgment in an action on an account annexed. The error assigned is that it appears by the record that judgment was entered upon an auditor’s report for the amount of damages found by the auditor and costs, whereas the plaintiff was entitled also to interest from the date of the writ. It is agreed that the plaintiff was paid the amount of the judgment and gave a receipt for it, he being ignorant of the error at the time. It does not appear of record that the judgment has been satisfied.
It was not contended that the record does not disclose an error, or that in this proceeding it can be assumed that the interest was remitted by the plaintiff when the record shows no justification for the failure to add it. The argument for the defendant was only that this error is not such as to entitle the plaintiff to have the judgment reversed, and that if he ever had that right he lost it by accepting payment.
The former proposition is thrown out merely by way of suggestion. We see nothing in it, and can conceive no reaspn why a plaintiff should not have a judgment corrected in this way, if, on the face of the record, it gives him too small a sum. As to the second, no doubt it is a commonplace that a party may preclude himself from setting up error in a judgment by taking
The question remains whether the interest should be computed from the date of the writ or from the filing of the auditor’s report. In some cases where the amount to be paid is unliquidated until the report is filed it would be unjust to treat the defendant as in default before that time. Under such circumstances the usual practice under Pub. Sts. c. 171, § 8, is to compute interest from the date of the report. But when the claim is liquidated and should have been paid before action brought, and when the auditor while allowing interest has computed it only to the date of the writ, it seems to us proper that, for the judgment, interest should be made up from the same time, that is to say from the date of the writ. It seems unnecessary to consider whether this result is to he reached by construing the words “ the time when made ” in the statute as meaning the time as of which the report is made as shown by its computation of interest, or by construing the statute merely to fix the minimum of the prevailing party’s rights, leaving it open to the court to allow more. See Speirs v. Union Drop Forge Co. 180 Mass. 87" court="Mass." date_filed="1901-11-25" href="https://app.midpage.ai/document/speirs-v-union-drop-forge-co-6427620?utm_source=webapp" opinion_id="6427620">180 Mass. 87, 93, and cases cited.
Judgment reversed.