40 S.W. 11 | Tex. | 1897
Watkins sued Junker to recover a demand for $620.98, alleged to be due for the services and the rental of certain boats. Junker pleaded in reconvention for damages resulting *586 from a failure to furnish certain dredge boats under a contract between the parties.
There have been several trials of the case, and once it was appealed to the Supreme Court before the organization of the Courts of Civil Appeals, and by the Supreme Court reversed; after which it was again tried and appealed to the Court of Civil Appeals, which reversed the case again. Upon the third trial the defendant below recovered of Watkins the sum of $3262.52, less $1013.08, the amount of the claim and interest sued for by the plaintiff in the case, leaving the balance in favor of the plaintiff on his plea in reconvention $2249.44. The plaintiff in error has assigned a number of grounds in his application, upon which he complains of the judgment of the District Court and Court of Civil Appeals, but we deem it unnecessary to notice any of them except that one which calls in question the correctness of the charge of the court wherein the jury was instructed to allow interest at eight per cent upon the damages which they might find in favor of the defendant upon his plea in reconvention.
The facts found by the Court of Civil Appeals, and which are sufficient to understand the questions to be discussed, are as follows: "We conclude that the facts show that appellee had entered into a contract with the Federal Government to perform certain services at Calcasieu Pass; that to perform the labor contracted to be performed required at a certain stage in the work the use of dredge boats; that appellee before entering upon the work entered into a contract with appellant, which required appellant on ten days notice to furnish the necessary dredge boats. Relying upon the promise of appellant, through his agent Thompson, appellee entered upon the work and after proceeding until it was about time to use the dredge boats, appellee applied to appellants for the dredge boats, which he failed and refused to furnish. Appellee used every endeavor to obtain other dredge boats but failed to get them. That by reason of the failure of appellant to furnish the dredge boats, appellee lost all that he had expended on two revetments, the government refusing to pay him anything for the work because he could not complete his contract. Appellant knew that the dredge boats were indispensable to enable appellee to finish his contract. Appellee was damaged in the amount found by the jury after deducting the amount due appellant by appellee."
It is objected in this case that interest is a creature of the statute and cannot be allowed upon unliquidated damages. It is true that interest, strictly speaking, exists only by statutory law; but it is likewise true that courts have recognized the fact that compensation for detention of that which is due on account of injury inflicted is an element of damages necessary to the complete indemnity of the injured party and the courts have, by analogy, adopted the legal rate of interest fixed by statute as the standard by which to be governed in assessing damages for the detention of money.
In the case of Heidenheimer Co. v. Ellis, 67 Texas, on page 428, the *587 court said: "It is frequently said, in the decisions of the courts, that interest is the creature of the statute. In a certain sense this is true, but as applied to one class of cases the phrase is misleading. Interest cannot be allowed eo nomine unless expressly provided for by statute, but in many instances it may be assessed as damages when necessary to indemnify the party for an injury inflicted by his adversary, though the statute be silent upon the subject." It may not be technically correct to call this compensation interest, but that is a term so familiar that it is perhaps the most expressive and intelligible that could be used to inform the jury what the rights of the parties are. At any rate, the use of the word does not constitute error for which a judgment would be reversed.
Interest as damages may be allowed upon unliquidated demands whether they arise out of a breach of contract or out of a tort. (Sedgwick on Damages, vol. 1, section 320.) Interest, however, cannot be allowed upon damages arising from assault and battery, libel and slander, seduction, false imprisonment, nor for personal injuries and the like. (Sedgwick on Damages, sec. 320; Railway Company v. Young,
It has been generally held by the courts that the jury may allow interest upon damages arising out of the breach of a contract made by a carrier for the carriage and delivery of goods. (H. T. C. Ry. Co. v. Jackson,
In the greater number of cases it has been said that interest may be given by the jury in their discretion upon the damages assessed when the character of case is such as to allow of interest; and in some cases it has been held to be error to instruct the jury to allow interest upon damages assessed by them, although it would have been correct for the court to inform the jury that they might allow such interest in their discretion. *588
(Close v. Fields,
It was not error for the court to charge the jury to find interest for Junker upon any sum found to be due to him, but there is error in the charge in instructing the jury to find interest at eight per cent for the whole time. When the breach of contract occurred the legal rate of interest in this State was eight per cent, but that rate was changed to six per cent by a law which took effect July 11, 1892, and we are of opinion that the rate in force at the breach of contract did not attach to the right of recovery but the rate fixed by law should be applied while in force. Junker was entitled to interest at eight per cent up to July 11, 1892, and after that date to six per cent.
It is therefore ordered that the judgments of the District Court and Court of Civil Appeals be reversed and that judgment here be rendered in favor of Guy W. Junker against J.B. Watkins for the sum of $2000, with interest thereon from the first day of January, 1888, until the 11th day of July, 1892, at eight per cent; and with six per cent on the said $2000 from that date until the date of this judgment; less the sum of $620.98 with interest thereon at eight per cent from the first day of January, 1888, until the present date. The point upon which we reverse the judgments of the District Court and Court of Civil Appeals arises upon the assignment of error, but was not specifically presented in either court; we therefore think that the plaintiff in error should pay costs in all the courts and it is so ordered.
Reversed and rendered. *589