Soule v. Soule, 157 Mass. 451

Soule v. Soule

157 Mass. 451 | Mass. | 1892

Morton, J.

It is well settled that the recital of the payment of the consideration in a deed is only prima facie evidence of payment, and may be rebutted by paroi testimony. Wilkinson v. Scott, 17 Mass. 249. Clapp v. Tirrell, 20 Pick. 247. Clark v. Deshon, 12 Cush. 589. Ely v. Wolcott, 4 Allen, 506. Egan v. Bowker, 5 Allen, 449, 451. The evidence objected to was therefore rightly admitted by the auditor, and there is nothing to show that there was any error in the ruling of the court that the plaintiff was entitled to recover the amount found due by the auditor on the note.

We think the fair construction of the case as it comes to us is that it was tried in the Superior Court on the footing that whether interest was or was not due was to be determined by the facts stated in the auditor’s report, and such inferences as might be properly drawn from them. No objection seems to have been made that the facts were insufficiently reported, and it does not appear that any motion was made to recommit the report.

The plaintiff contends, in substance, that when one agrees to pay another a yearly salary, beginning on one date and expiring on another, he agrees to pay the salary at the expiration of the year, and that therefore interest is payable so long as the salary or any part of it remains unpaid after the expiration of the year. We do not think this is correct. An agreement to pay a yearly salary is simply an agreement to pay so much for services by or *455for the year, and no more imports that the amount is to be paid at a particular time than the purchase of any other commodity, in the absence of any usage or understanding express or implied to that effect, imports that the price is to be paid at any particular time. The case falls, therefore, among those in which interest is not recoverable until demand for payment is made; and no demand for payment having been made, interest is to be reckoned from the date of the writ. The ruling of the court was right in this respect also.

Judgment on the auditor's report, excluding such items of interest on the items of the account annexed as were allowed the plaintiff and defendants respectively by the auditor.