People's Savings Bank v. Borough of Norwalk

| Conn. | Jul 7, 1888

Loomis, J.

The plaintiff, on the first day of July, 1886, was the owner by purchase of fifty bonds, each for one thousand dollars, known as water-fund bonds, issued in the year 1871 by the defendant borough upon authority granted by the General Assembly, and bearing date July 1, 1871. These bonds were a part of an authorized issue of bonds to the amount of $175,000, all of that date, and put upon the market together, and had interest coupons attached, payable half yearly on the first days of January and July at the rate of seven per cent, per annum. The bonds contained the promise of the borough to pay their amounts on the first ■ day of July, 1896, at the Fairfield County National Bank in the borough of Norwalk, and also interest semi-annually at the rate of seven per cent, per annum, on the presentation of the coupons at.the same bank and their surrender. The bonds contained also the following clause:—“Sec. 4. This obligation is redeemable in full at the pleasure of said borough of Norwalk at any time after July 1,1886, and before maturity, upon payment of the principal sum and interest accrued at the time of such redemption.”

The borough availed itself of this right to redeem the bonds before maturity, and gave public notice that they would be paid on presentation at the bank named and on surrender of the bonds, on the second day of July, 1886. The borough deposited with the bank in question the amount of the principal of the entire issue of the bonds, and the other holders of them presented their bonds at the bank and' accepted the principal in full payment of the same. The interest coupons, due the day before, were separately provided for and were paid, including those held by the plaintiff, and no question arises in the case with regard to them. •

The plaintiff, on the nineteenth of July, presented its fifty bonds at the bank and demanded payment of the principal and of the interest at seven per cent, from the first day of July to that date. The bank denied the right of the plaintiff to any interest after the first day of July, and refused to pay anything beyond the principal of the bonds, and this the plaintiff refused to receive, and the present suit was afterwards brought upon the bonds.

A question was made before the jury as to whether the plaintiff received notice of the call for the bonds by the borough on or before the second day of July, or not until the 19th, the plaintiff contending that the latter was the fact and the defendant the former. This question, however, becomes wholly unimportant in .the present position of the ease. The plaintiff was clearly entitled, if notice of the call had been seasonably received and it had presented the bonds on the second day of July, to one day’s interest, amounting to |9.72. The jury, in its verdict, found this interest to be ■due, and the plaintiff does not complain of its insufficiency, while the defendant has no ground of complaint.

The judge charged the jury that if they found that the savings bank had notice that the bonds were called and that there was not money enough in the Fairfield County Bank on that day to pay the bonds in full, principal and interest, then their verdict should be for the plaintiff for the $50,000, and interest thereon for one day at seven per cent, added, and then interest on this sum at six per cent, from the 2d day of July to the time of trial. The jury returned the following verdict:—“In this case the jury finds the issue for the plaintiff, and therefore finds for the plaintiff to recover of the defendant $50,000, and interest for one day, to the amount of $9.72; making in all $50,009.72 damages, and his costs.” The court did not accept the verdict, but said to the jury that, as it appeared that they had omitted to compute the ’ interest up to the time of trial, they might again retire and make such computation. The verdict was handed back to the foreman and the jury again retired to their room, where they remained from fifteen to thirty minutes. When they again returned to court their names were again called and they were asked if they had agreed on a verdict; the foreman answered that they had; and handed to the clerk a verdict for the plaintiff for $54,748.81. This the clerk took and read aloud. ' The court accepted it and ordered it recorded. Thereupon the clerk, addressing the jury, said:—“Gentlemen of the jury,—Listen to your verdict as accepted by the court and ordered to be recorded.” He then read it aloud and said, “ This is your verdict; so say you all; ” to which the jurors all assented.

The instructions given to the jury by the judge in returning to them the verdict, that they should add interest at six per cent, from the 2d day of July, are excepted to as being an assumption on the part of the judge of a right to dictate to the jury the terms of their verdict, which is wholly unwarranted in law, and that the instructions were erroneous if they had been otherwise unexceptionable. It is contended that the judge, upon refusing to accept the verdict, could only send the jury back to a further consideration of the whole case, leaving them to bring in such a verdict as, upon a proper statement to them of the law, they might upon consultation agree upon. The verdict, it is said, may have been a compromise one, those of the jurors who preferred to bring in a verdict for the defendant, or for only the principal of the bonds, consenting to a merely nominal addition of interest, and that, if the verdict was to be for a larger sum, they might not have assented to it.

, But it is clear, in the first place, that the verdict cannot have been a mere compromise one, in the ordinary sense of that term, where the amount is arrived at by no rule furnished by the evidence but upon some computation of the average of different sums, for here the verdict states expressly that it is made up of the $50,000 principal and of oneMay’s interest upon that sum at seven per cent., and that the issue is found for the plaintiff. It is not to be presumed that a jury, who had arrived at such a point in their conclusions, could afterwards bring in a verdict for the defendant, or one for the principal without the interest. The verdict must be taken as settling the point that the jury had decided the case for the plaintiff and that it was entitled to one day’s interest. This conclusion is not only strengthened, but we might say is made'unavoidable, by the fact, that a verdict that did not allow the plaintiff this one day’s interest could not have stood for a moment.

But it is said that the court had no right to direct the jury to add the later interest, but could only instruct them as to the law and leave them to make their own verdict. But where the judgment in a case heard before a jury depends wholly on a question of law, so that any' other verdict than the one so required would inevitably be set aside upon review, it has long been the practice for the judge to direct the jury to bring in a particular verdict. It is merely reaching more speedily and directly a result which would inevitably be reached in the end. In this case, if the plaintiff was entitled to a finding of the issue in its favor, it was absolutely entitled to interest on the amount found due on the bonds down to the time of trial. Any other result would have involved an error that would have been sufficient ground for setting aside the verdict. It was a case therefore where a judge might properly direct a jury to add this interest to the amount of their verdict.

But the judge did not in fact direct the jury in the matter. He merely told them that they had omitted to compute the interest up to the time of trial, and sent them back to make the computation for themselves. This was only giving them instructions as to the law, and that no more fully than he had done in the first instance. He had before told them that if they found that the plaintiff had had notice of the call they should find a verdict for it, for 150,000 and one day’s interest at seven per cent., and interest at six per cent, on the amount to the time of trial. The jury had by their verdict found the submitted fact, and no question of fact remained unsettled, and by the instructions given they were then to find the full interest. These later instructions were a mere repetition of the former, with perhaps a somewhat greater degree of positiveness in view of the fact that what the jury had already found made the inclusion of the later interest in their verdict absolutely indispensable. And the jury on returning the second verdict declared it, in the usual way, to be their verdict and that of them all.

It is further claimed that the judge was directing them to find interest on interest, inasmuch as a part of the sum upon which the six per cent, interest was to be computed was this one day’s interest, §9.72. - It is undoubtedly a general rule that where an obligation draws interest at a stated rate, the damages in a suit upon it are the principal sum and interest on it, at the rate fixed, down to the time of trial. But a distinction may perhaps be drawn between such a case and the present one, inasmuch as here the sum to be paid upon a call of the bonds before maturity was to be the principal and interest to that date, the aggregate being the amount of the debt which, as a specific sum, the borough bound itself then to pay; but it is not necessary to decide the point, inasmuch as the interest, if allowed only on the principal of the bonds, would under this rule have been at seven peícent. to the time of trial, which would make a larger amount than that awarded by the verdict. The defendant has therefore suffered nothing from the error, if it be one, and cannot complain of it.

Even if the error were injurious to the defendant, jet as the amount of its loss would be so trifling, but about one dollar in fact, the principle de minimis would apply and the court would not take notice of it.

- The defendant’s call involved the duty and necessity of having at the bank on the day fixed “for the presentation of the bonds, a sufficient sum to pay the bonds and interest, and. to keep such sum at the bank ready for payment to the plaintiff on demand; but the defendant never had a sufficient sum there, and therefore the call became inoperative as against the plaintiff, but left the plaintiff a right, at its option, to treat the bonds as due and to bring suit for their recovery. Upon such a suit it would seem that the interest would, under the ordinary rule, run on the bonds at the rate fixed by their terms to the time of trial.

The point was made by the defendant’s counsel that, as' the defendant had in the Fairfield County Bank on the 2d day of July, 1886, and on the 19th of July when the bonds were presented, fifty thousand dollars, deposited for the plaintiff when it should call with its bonds, and which sum was then offered it by the cashier of the bank, the tender was to be regarded as applying as far as it would go, and as it was only by a small sum short of what the plaintiff was entitled to, it should be regarded as covering forty-nine of the fifty bonds, leaving interest to run against the defendant only on the one remaining bond. But it is-a sufficient answer to this claim to say that the tender was not of payment of forty-nine of the bonds, leaving one bond for future payment, but that the bank refused to pay anything as interest,while each of the forty-nine bonds would have been entitled at least to its one day’s interest. Besides this, the monej7 was to be paid, according to the terms of the defendant’s call, only on the surrender of the bonds. It is clear that the bank did not consider itself authorized to pay, and would not have paid, the $50,000 on the surrender of only forty-nine of the bonds. Such an application of the tender as is now suggested was never thought of by either party at the time, and is not entitled to any consideration here.

There was no error in the judgment complained of.

In this opinion the other judges concurred.