Del Moral v. Commercial Union Assurance Co.

13 P.R. Fed. 129

Opinion

OdliN, Judge,

delivered tbe following opinion':'

The question now submitted is one of new impression, so far as counsel and the court are aware.

It is this: Where a plaintiff suing for $30,000 recovers a verdict for $7,000 which he deems unjust as being too small, and he therefore moves for a new trial, which the coui’t denies, the plaintiff then proceeds with a writ of error to the appel late court; several months after the verdict, and before the case is reached at Boston, the plaintiff desires to abandon his appellate proceedings, and accept the verdict, notifying counsel for the defendant. Thereupon the latter offers the plaintiff $7,000, plus the taxable costs, but does not include any interest on the $7,000, and argues that it would be unjust to require. payment of any interest upon the theory that, except for the appellate proceedings, the $7,000 plus costs would have been paid at once after entry of judgment. Counsel for plaintiff argues that plaintiff’s judgment draws interest automatically from its date, which interest is not lost by reason of a writ of error later withdrawn; that if defendant desired to avoid payment of such interest, a tender of the $7,000 plus costs should have been made and in case of refusal to accept, then there should follow a deposit in the registry of the court. It is conceded that there was neither a tender nor a deposit; but-counsel for the defendant argues that a tender would have been a useless formality since the plaintiff announced at once after denial of motion for new trial, his intention to carry the case to Boston.

It seems to me that this conclusion does not necessarily follow; if tbe plaintiff bad “seen tbe greens” be might bave taken them and abandoned bis appeal. It is at least possible.

At all events, it is clear that tbe defendant, since tbe date of tbe judgment, bas bad tbe use of $1,000 wbicb be concedes to be due tbe plaintiff. And I therefore bold that tbe defendant by failing to make any tender or any deposit is es-topped to claim exception from tbe payment of interest. Tbe $7,000 will therefore draw legal interest from date of judgment until payment.