171 Mass. 188 | Mass. | 1898
This is a bill in equity to redeem land from a mortgage for eighteen thousand dollars and interest at six per cent, given in fact, although not in form, to secure future advances. The defendant has advanced ten thousand dollars, and the only question is whether the plaintiff is bound to pay interest upon the whole eighteen thousand dollars for any and what time, or is bound to pay it only upon the sum actually received.
The judge who tried the case charged the plaintiff with interest only on the sum actually received by her, except for a short time which is not in controversy, as the plaintiff did not object to the charge. It appears from the report of the facts that the plaintiff did not agree to pay interest on sums not advanced, unless such agreement is implied in the note and mortgage, or in the instrument now to be mentioned.
On April 22, 1895, a few days after the mortgage, the parties executed a sealed instrument reciting that the plaintiff was building a house and stable on her land in Milton, and that the defendant had agreed to lend the plaintiff eighteen thousand dollars, taking a mortgage of the said land as security for it, and that she had advanced ten thousand dollars. In this instrument the plaintiff covenanted, among other things, to complete the house and stable on or before October 1, 1895, that if she did not, the defendant might finish the work at the plaintiff’s expense, and that all sums so expended should be considered part of the promised loan, and should be held to be secured by the mortgage. The defendant then covenanted to pay the rest of the loan, eight thousand dollars, thirty-five days after workmen had ceased to labor on the house and stable, provided there were no liens, etc.
The judge further reports that the plaintiff, by default of her contractors, did not complete the buildings by October 1, 1895, and that after that date the defendant was not bound to advance
We think it very plain that the decree was sufficiently favorable to the defendant. We agree with the construction of the defendant’s covenant which limits it to the case of the building being finished by October 1. If it is so limited, it would be a harsh thing to make the plaintiff pay interest for money which she never has had and could not have demanded. If we assume what we do not decide, that after October 1 the defendant, although not bound to lend, had a right if so disposed to require the plaintiff to accept the rest of the loan, she did not do so. If she had done so, but had stopped with tendering the amount remaining to be advanced to the plaintiff, even if entitled to damages for a refusal on the plaintiff’s part to complete the contract, she would not have been entitled to interest. To gain the right to that it was necessary at least that she should both signify her intent to insist upon her supposed right to make the advance, and should set apart the money which she expected the plaintiff to take.
It so long has been regarded as settled law in this Common-, wealth that interest upon interest cannot be recovered simply on the strength of a demand, that we cannot take upon ourselves to revise the reasoning upon which the doctrine was established. It is plain from that reasoning that the cases do not stand on the absence of a technical default, but on the ancient unwillingness to allow compound interest. Shaw v. Norfolk Comity Railroad, 16 Gray, 407, 416. Ferry v. Ferry, 2 Cush. 92. Henry v. Flagg, 13 Met. 64, 67. Wilcox v. Howland, 23 Pick. 167, 169. Hastings v. Wiswall, 8. Mass. 455. Doe v. Warren, 7 Greenl. 48. Sedgwick, Damages, (8th ed.) §§ 343, 345.
Feeree affirmed.