Dwyer v. United States ex rel. Allentown Rolling Mills

Second Circuit

Dwyer v. United States ex rel. Allentown Rolling Mills

93 F. 616, 1899 U.S. App. LEXIS 2268

CourtCourt of Appeals for the Second Circuit

DecidedApril 4, 1899

DocketNo. 142

StatusPublished

Cited by7 cases

This text of 93 F. 616 (Dwyer v. United States ex rel. Allentown Rolling Mills) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dwyer v. United States ex rel. Allentown Rolling Mills, 93 F. 616, 1899 U.S. App. LEXIS 2268 (2d Cir. 1899).

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Opinion

PER CURIAM.

There being no bill of exceptions, the writ of error brings up only the judgment roll, and whatever questions may arise thereon. Two assignments of error only have been presented in argument.

1. It appears that the bond was in the amount of $12,000, and defendants contend that there can be no recovery in excess of that sum. It is well settled that no damages can be recovered in excess of the penalty named in the bond, but the costs which plaintiff is made to incur by the obligors’ failure to pay on demand, and subsequent defense of the action, a,re within neither the letter nor the spirit of the rule. The total amount of the recovery in this case, exclusive of costs, is $11,861.68, — a sum less than the penalty.

2. It is further suggested by plaintiff in error that a party is not entitled to interest on an unliquidated claim until after demand. The proposition is undoubtedly sound, but we fail to see its application here. Conceding that the plaintiff’s demand was unliquidated, it appears that the verdict was “for the plaintiff for $10,-924°%oo, with interest from July 16, 1897, amounting to $60088/ioo, making a total of $11,52538/ioo.” It further appears that the summons and complaint were served on July 16, 1897. This was certainly a demand sufficient to set interest running. The judgment is affirmed.

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PER CURIAM.

There being no bill of exceptions, the writ of error brings up only the judgment roll, and whatever questions may arise thereon. Two assignments of error only have been presented in argument.

1. It appears that the bond was in the amount of $12,000, and defendants contend that there can be no recovery in excess of that sum. It is well settled that no damages can be recovered in excess of the penalty named in the bond, but the costs which plaintiff is made to incur by the obligors’ failure to pay on demand, and subsequent defense of the action, a,re within neither the letter nor the spirit of the rule. The total amount of the recovery in this case, exclusive of costs, is $11,861.68, — a sum less than the penalty.

2. It is further suggested by plaintiff in error that a party is not entitled to interest on an unliquidated claim until after demand. The proposition is undoubtedly sound, but we fail to see its application here. Conceding that the plaintiff’s demand was unliquidated, it appears that the verdict was “for the plaintiff for $10,-924°%oo, with interest from July 16, 1897, amounting to $60088/ioo, making a total of $11,52538/ioo.” It further appears that the summons and complaint were served on July 16, 1897. This was certainly a demand sufficient to set interest running. The judgment is affirmed.

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93 F. 616, 1899 U.S. App. LEXIS 2268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwyer-v-united-states-ex-rel-allentown-rolling-mills-ca2-1899.

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