78 N.Y. 393 | NY | 1879
This is an action to recover damages for a breach of warranty in the sale of cabbage seeds. The warranty, as alleged and found, is that the seeds were Bristol cabbage seeds; and it was found that they were not, and that they did not produce Bristol cabbages. The rule of damages, as laid down by the trial judge in his charge to the jury, was in conformity with the decision of this court when the case was here upon a prior appeal (
The law in this State as to the allowance of interest in common law actions is in a very unsatisfactory condition. The decisions upon the subject are so contradictory and irreconcilable that no certain rule for guidance in all cases can be deduced from them.
The common law rule, as expounded in England, allowed interest only upon mercantile securities, or in those cases where there had been an express promise to pay interest, or where such promise was to be implied from the usage of trade. (Mayne's Law of Damage [2d ed.], 105; Higgins v. Sargent, 2 B. C., 349.) In the absence of these conditions, interest was not allowed in an action for money lent, or for money had and received, or for money paid, or on an account stated, or for goods sold, even though to be paid *395 for on a particular day, or for work and labor. (Gordon v.Swan, 12 East, 419; Calton v. Bragg, 15 id., 223; Walker v. Constable, 1 B. P., 306; Carr v. Edwards, 3 Starkie, 132; Nichol v. Thompson, 1 Camp., 52, n.; Trelawney v.Thomas, 1 H. Bl., 303.)
Thus the law remained in England until the statute of third and fourth, William IV, which provides that upon all debts or sums certain, and in actions of trover and trespass de bonisasportatis, and in actions upon policies of insurance, the jury may in their discretion allow interest as part of the recovery.
We have no statute in this State regulating the allowance of interest in such cases. The rule early adopted here upon the subject was more liberal than that adopted in England. The allowance of interest was at first mainly confined to cases coming within the common law rule as above defined, and to actions to recover money wrongfully detained by the defendant. The rule was then extended so as to allow interest upon the value of property unjustly detained or wrongfully taken or converted, and for goods sold and delivered, and for work and labor; and thus, by a sort of judicial legislation, the allowance of interest, as a legal right, was carried much further here than the scope of the English statute where the allowance was placed simply in the discretion of the jury. At first the allowance of interest in actions of trover and trespass de bonis asportatis was in the discretion of the jury. Now it is held to be matter of legal right. Down to a recent period interest was not allowed upon unliquidated accounts or demands. Now that last landmark has been swept away, and the sole fact that a demand has not been liquidated is not a bar to the absolute legal right to interest.
A reference to a few recent decisions will show the present state, or as I might with propriety say, the uncertain state of the law upon the subject.
In Van Rensselaer v. Jewett (
This brief presentation of decided cases shows how difficult it is to deduce from them any certain rule as to the allowance of interest. A statute could probably be framed *398 which would produce more certain, if not juster results. But it must be seen that to uphold this judgment, the rule as to the allowance of interest must be carried at least one step further than it has ever yet been carried; and we are unwilling that the step should be taken in this case.
After a very thorough examination of the cases in England and this country, I have not been able to find one, prior to this one, in which it has been held that in a case where the claim was such as not to draw interest from an earlier date, interest could be allowed from the commencement of the action, unless the claim was such that the interest could be set running by a demand, the commencing of the action in such case being a sufficient demand.
In Feeter v. Heath (11 Wend., 479), the action was to recover for work, labor and materials. There was no dispute as to the amount of plaintiff's claim; the only dispute was whether the defendant was personally responsible for the same. The agreement was to pay the plaintiff upon performance of his contract; and the court held that he was entitled to interest at least from the commencement of the action, as that was a legal demand of payment. Under the contract the plaintiff was entitled to interest from the time his money was due; and that was either when he finished his contract, or when he presented his bill and demanded payment; and the court held that the commencement of suit was a sufficient demand. If a demand was necessary, under the circumstances of that case, a demand before suit would have been just as effectual, for the purpose of the interest allowance, as the demand by the commencement of suit; and if such a demand had been made, the plaintiff would have been entitled to interest at least from the time of such demand. In McCollum v.Seward (supra), the referee allowed interest from the commencement of the suit; and that was held not to be erroneous. It was not decided that it would have been erroneous to have allowed interest from an earlier date; and the same is true of the case of Mercer v. Vose. If in each of those two cases an account *399 had been made and presented to the debtor, and payment demanded, it is probable that the court would have sustained an allowance of interest, from such demand.
In Barnard v. Bartholomew (22 Pick., 291), the action was to recover a balance of account for money and professional services; and it was held that "interest is to be allowed where there is an express promise to pay it, or where there is a usage proved from which the jury may infer a promise to pay; and also it may be given as damages for the detention of a debt after the time when due by the terms of the agreement, or for neglect to pay a debt after a special demand." In Amee v. Wilson
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The cases last cited tend to show that where an account for services, or for goods sold and delivered, which has become due and is payable in money, although not strictly liquidated, is presented to the debtor and payment demanded, the debtor is put in default and interest is set running; and that, if not demanded before, the commencement of suit is a sufficient demand to set the interest running from that date. But there is no authority for holding in a case like this, where the claim sounds purely in damages, is unliquidated and contested, and the amount so uncertain that a demand cannot set the interest running, that it can be set running by the commencement of the action. Why should the commencement of an action have such effect? The claim is no less unliquidated, contested and uncertain. The debtor is no more able to ascertain how much he is to pay. No new element is added. The conditions are not changed, except that the disputed claim has been put in suit; and there is no more reason or equity in allowing interest from that than from an earlier date. If interest as a legal right can be allowed in this case from the commencement of the *400 action, then it must be allowed from the same date in all actionsex contractu, and logically it would be impossible to refuse it in actions ex delicto.
Therefore when this court, upon the prior appeal, decided that the nature of this claim was such that interest could not be allowed thereon from a time anterior to the commencement of the action, it really decided the question now presented.
The judgment of the General Term must therefore be reversed, and the judgment entered upon the verdict must be modified by striking therefrom the sum of $1,277,49; and as thus modified, it must be affirmed, without costs to either party as against the other upon the appeal to the General Term and to this court.
All concur.
Judgment accordingly.