65 Vt. 516 | Vt. | 1892
The opinion of the court wasdelivered by
The charges on book are for the board of an illegitimate daughter of the deceased from the fifth to the twentieth year of her age. The auditor finds that the plaintiff agreed to board the child ‘ ‘ for the sum of ten dollars per month,” but that nothing was said as to the length of service or the time of payment. The credits are seven small payments, irregular both in date and amount. No bill was presented nor other demand of payment made until the fall of 1888.
The court below confined the plaintiff’s recovery to the board of the daughter during her minority. We think this-restriction was error. The circumstances under which the arrangement was made afford no ground for holding that the parties contracted with reference to the statutory period of emancipation. The putative father had not been placed under any legal obligation to provide for the child’s maintenance. The natural affection or sense of moral obligation which led him to do so would not be determined by the arbi
The judgment below includes interest on each sum of ten dollars from the end of the month for which the charge is-made. It is contended in behalf of the estate that interest can be allowed only from the time payment was demanded. It thus becomes necessary to determine upon what basis interest is allowable on a claim of this character. Our rules-regarding the allowance of interest were developed in special recognition of the situation of our people and their methods of business, and are somewhat at variance with those that prevail in other jurisdictions. As long ago as the decision in Langdon v. Castleton, 30 Vt. 285, it was said that these rules had become so well established by repeated decisions, and had come to be so thoroughly understood and generally relied upon by the community, that they ought not. to be unsettled upon the authority of foreign precedents. These considerations have acquired additional force with the-lapse of time, and the disposition of any case now arising should certainly be in harmony with our previous decisions.
It is the fundamental principle of our decisions that interest is to be allowed on whatever remains unpaid after it has-become the debtor’s duty to pay it. The solution of the-question presented lies in the proper application of this doctrine. Our attention has been specially directed to two cases-as helpful in determining the application. In Newell v.
It was early considered in this State, in cases where items of account were accruing at short intervals, and for a considerable period of time, and where there was no understanding as to time of payment or compensation for delay, that interest should not be computed on each item from its date, but that on the other hand it should. not be denied for the whole time that settlement was delayed. The result was the establishment of a rule that in cases of ordinary running
But the rule has not been restricted to accounts of the nature above described. In Spencer v. Woodbridge, 38 Vt. 492, it was applied in a case very similar to this. In that case the plaintiff was employed by the defendants at a fixed monthly salary, and remained in their service some over three years. The plaintiff presented no bill until just before the bringing of the suit, and it was insisted that he was entitled to interest only from the time of the demand. The plaintiff had at different times called for money on account and had failed to obtain it, but this fact was given no bearing except as showing that the defendants had knowl
The period of a month was named by the parties to this-contract only as a measure of the compensation, and not to fix the time of payment. No question can arise as to the completion of the service being the time of payment, for the contract was not for any definite period. But the contract having continued for a series of years, and a demand having then been made, the question is presented whether the law will treat the debtor as under an obligation to pay at the-end of every month, or at the end of every year, or not until demand. Doubtless the plaintiff could have terminated the contract or have compelled its modification at any time, and so have controlled the time of payment. But the mere asking for money before the expiration of a year would not entitle him to interest upon it from the time of asking, if he suffered the contract to go on as before. On the other hand, his right to have interest allowed from the end of each year-in no way depended upon his calling for payment. There is no feature of the case which can be held to have entitled the debtor to any information, notice or demand. He knew . that the service contracted for had been rendered and that his obligation to pay for it was complete. It was his duty to attend to the payment, after the expiration of the usual period of credit,, if he did not wish to become chargeable for interest. But while we do not think the creditor should be denied interest because of his neglect to demand payment, we do not consider that the debtor should be charged with interest from the end of each month because of the failure to settle monthly. We think that upon a contract of this character it would be contrary to the general tenor of our decisions, either to compute interest from the close of each month,,
The mother of this child married the plaintiff when the child was between four and five years old, and about four teen months after the marriage the deceased left the child with the plaintiff at his house, as the plaintiff claimed in pursuance of the agreement found by the auditor. The defendant offered to show, as bearing upon the probability of •there having been such an arrangement on the part of the deceased, that at some time before the marriage he had paid fhe mother such damages as it was agreed she could have recovered against him under the statute relating to bastardy. We think the evidence offered had so little bearing upon the issue in controversy that its exclusion was not error. It is apparent from the report that the child had been in the keeping of the father previous to its being taken to the plaintiff’s house. If the mother had continued to support the child from the time of the settlement, and had taken the child with her to the plaintiff’s house upon her marriage, so that its' ■stay there during the time of the alleged contract had been but a continuation of a previous residence in his family, a ■different question would have been presented. But whatever the bearing of the proposed evidence might have been in such a case, we think it could not have had the effect claimed by the defendant when the deceased had before this taken charge of the child notwithstanding his settlement with the mother.
The declarations of the deceased regarding the payment ■of money to the plaintiff’s wife, not made in connection with any act on his part, were properly excluded.
The first question arising upon the issue submitted to the jury is whether the right of action survives. It is insisted in behalf of the estate that the action does not survive because
The decisions in this State regarding the recovery of' money paid as usury afford no support to the defendant’s claim. The decision in Hubbell v. Gale, 3 Vt. 266, where it was held that the writ should have received the minute re
The case is clearly within the test applied at common law to determine whether a demand survives. The rule is that the cause of action survives against the estate whenever the estate has received a benefit from the transaction for which a recovery maybe had by an action in form ex contractu. Hambly v. Trolt, Cowp. 371; United States v. Daniel, 6 How. 11; Cravath v. Plympton, 13 Mass. 454; Roberts v. Burton’s Est., 27 Vt. 396. Money which the statute declares to belong to the plaintiff, and to be recoverable in an action for money had and received, is in the assets of this estate. If the money is the plaintiff’s, the death of its possessor cannot have deprived him of the right to recover it. •
But the defendant submits that if the action is one that will survive as not penal in its nature, it cannot be maintained, because based upon an illegal transaction in which the plaintiff and the deceased were equally in fault. The liquor was sold by the deceased in violation of law and was bought by the plaintiff for the purpose of unlawful sale ; and neither party could ordinarily have the aid of the court in any matter growing out of the transaction. But it is within the province of the legislature to relieve either party to an illegal transaction from the operation of this rule. The statute pro
It appears that some of the payments which the plaintiff seeks to recover were for beer “purchased and imported into this State from the State of New York ” by the deceased, and sold to the plaintiff in the original packages. It is suggested that the exceptions do not show that the sale to the deceased was not made in this State, and that it should therefore be presumed that it was. If the sale to the deceased was in this jurisdiction,. that transaction brought the commodity into the general mass of the property within the State, and left the sale to the plaintiff subject to the State law. But we think the fact of a purchase outside the State cannot be eliminated from the exceptions. No construction can dispose of the statement that the liquor was imported into this State by the deceased, and if the deceased imported it into the State he must have purchased it elsewhere. It is therefore necessary to consider whether the deceased, a resident of this State, was, in the absence of an act of Congress authorizing State regulation, protected by the federal constitution in selling in the original packages liquors imported by him from another State.
The decision of the Supreme Court of the United States in Leisy v. Hardin, 135 U. S. 100, is binding upon this court; and the case at bar, if within that decision, is to be determined by it. The plaintiffs in that case were brewers, residing and doing business in the State of Illinois, who had shipped their manufactured product into the State of Iowa, and sold it there by an agent in the original packages. The decision of the court was that “ the State had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign non-resident importer”; and that the legislation under consideration was “ to the extent indicated ” repugnant to the constitution of the United States. It is urged that this decision should be given no ef-
The ground of decision in the case cited is that the State cannot prohibit the importation of intoxicating liquors, and ■that the right to import carries with it the right to dispose of the thing imported. Then the State cannot control the action of its citizens in the matter of sale, unless it can deprive them of the right to import. But if each State can prevent its own citizens from engaging in importation, commeixe cannot be effectively regulated by Congress. It is evident that the power of control must reach not only the articles to be imported but the agencies by which the importation may be made. Nothing less than this would enable Congress to secure to the business of the country that freedom from commercial embarrassment which is the recognized object of the constitutional provision in question. It being held that intoxicating liquor is an article of commerce and therefore entitled to importation, and that the right to import necessarily includes the right to sell, we see no escape from the conclusion that in disposing of this liquor in its original packages the deceased was in the exercise of a constitutional right, and not amenable to the statute under which the receipts of his other sales majT be recovered.
Judgments reversed; and judgment on auditor’s rejort for $7,^70, with interest to be commuted by the clerk from the fndings of the auditor on the basis of annual rests; and judgment on verdict for %y22.8i and interest.