103 Mass. 33 | Mass. | 1869
The first instruction was asked by the plaintiff on the ground, apparently, that her attorney had such a lien upon, or interest in, the pending suit, that without his consent the plaintiff herself could not settle the action so as to deprive the attorney of his right to look to the avails of the suit, as well as to the personal responsibility of the plaintiff, for his costs. But the case does not show any such lien to have existed.at the time
The remaining instruction asked for required the application of the familiar rule that a" creditor cannot bind himself, by a simple agreement, to accept a smaller sum in lieu of an ascertained debt of a larger amount, because such contract is without consideration. This rule, it is said, may obviously be urged in violation of good faith, and is not to be extended beyond its precise import1 it is never enforced when the technical reason on which it is founded does not exist. Brooks v. White, 2 Met. 283. It does not apply when the debt has not been liquidated between the parties; and, in the case of Wilkinson v. Byers, 1 Ad. & El. 106, 113, which resembled this, Parke, J., declared that, “ if an action be brought on a quantum meruit, and the defendant agree to pay a less sum than the demand in full, it is a good consideration for a promise by the plaintiff to pay his own costs ; ” and that “ in the great majority of actions of this nature, it is not a specific sum that forms the subject matter of the action, and, unless that could have been shown in the case at bar, there was a good consideration for the promise.”
The declaration in this case is upon an account annexed containing an item for board, and is equivalent to the common count upon a quantum meruit. It appears from the plaintiff’s testimony, that the whole of the item was due at the time of
There is another aspect of the case, which may be considered, and which tends to the same result. The amount paid at the settlement was more than enough, with the previous payment, to meet the plaintiff’s demand at the date of the writ. By adding interest from that time to the time of settlement, it is claimed that it now appears, by the plaintiff’s computation, that there is a small balance of interest unpaid. If this were so, the rule under consideration is not applicable to the state of facts as claimed to exist. The interest unpaid in this case was no part of an ascertained demand, or of a demand capable of liquidation by the terms of the contract alone. The plaintiff had no claim to interest as an incident to or part of the original debt, as where there is an original promise to pay interest or where there is default in the payment of money at the time stipulated. Her claim to interest is by the way of those damages which the law allows for the detention of money, and which, when there has been no demand, are computed from the date of the writ. And where the principal of the debt is paid and accepted, the action cannot be pursued for the interest. Such a demand does not seem to come within the principle which the plaintiff invokes the aid of. Bank of Brighton v. Smith, 12 Allen, 243. Goff v. Rehoboth, 2 Cush. 473. Tuttle v. Tuttle, 12 Met. 551. In the case of Johnston v. Brannan, 5 Johns. 268, which was an action on a promissory note payable on time, and therefore stronger for the plaintiff than the case at bar, it was held that the rule ought not to be applied to a case where the payment accepted as satisfaction fell short about two dollars of the whole amount of principal and interest due the court remarking that “in many cases interest is uncertain damages, and ought not to be considered as part of the debt, within the purview of that rigid and rather unreasonable rule of the old law.”