2 Wend. 501 | N.Y. Sup. Ct. | 1829
I think the charge of the judge was correct under the circumstances of this case. The only ground on which it could he contended that the account was liquidated and closed so as to carry interest was, that the account had been sent to the defendants, and they had not objected to it. In the first place there was no direct evidence that they ever received it; but admitting they did, the subsequent conduct of the plaintiffs, as well as the defendants, shews that neither party considered the account as closed or settled by the assent of the defendants. The defendants subsequently entered into an examination of it, and a material and important item was agreed to be struck out or materially reduced in amount. The plaintiffs did not consider the defendants as concluded by what had previously taken place. The judge was therefore correct in charging the jury that there was an unliquidated running account, which did not carry interest unless there was an agreement either express or implied between the parties that interest should be allowed.
There is no evidence that the defendants knew that it was the uniform custom of the plaintiffs to charge interest after 90 days, and it appears that no charge of interest had ever been made in any of the accounts rendered to the defendants except the last, nor was the length of credit stated in any of them. There was nothing, therefore, from which the defendants were bound to infer that any interest would be claimed from them as long as the account remained open and unliquidated.
The testimony of one of the witnesses that it is the uniform practice of grocers to charge interest on goods sold after 90 days, unless a special agreement to the contrary is made, does not amount to proof of the usage of a particular trade, of which all dealers in that line are bound to take notice, and are presumed to be informed.
Motion for new trial denied.
