Hubbard v. Charlestown Branch Rail Road

52 Mass. 124

Opinion

Shaw, C. J.

The only question now raised on this bill of exceptions is, whether the defendants were chargeable with interest upon the amount overdrawn by them, from the time of such over-draft. The court are of opinion that the direction of the judge was not correct in point of law, when he instructed the jury, that if the amount was actually paid to the defendants the jury should add interest from the time’of the over-draft, without instructing them to take into consideration the other circumstances of the case. ' If money were fraudulently or wrongfully obtained from a bank, it might be recovered back with interest. Wood v. Robbins, 11 Mass. 504.

Perhaps the evidence might have been properly left to the jury, to find whether the money was wrongfully drawn or not. But we think an over-draft on a bank is not necessarily wrongful; it may be made in conformity with some mutual agreement or understanding A draft on a bank, by one who has no funds, or beyond his funds, and a payment made in pursuance of it, constitute a loan of money; and supposing it to be made without any stipulation for interest in the outset, it does not necessarily draw interest until neglect or refusal of payment, after demand made, or some other default. In this case, it is stated that the defendants were expecting from the bank payments to a larger amount than the over-draft, for assessments on shares supposed to be the property of the bank, but standing in the name of Wyman, their president. What ground they had for such expectation does not appear; but it might have been such as to show that the over-draft was not necessarily wrongful. The difficulty is increased and complicated by the fact that Wyman was treasurer of the defendant company, and kept their books, and was also president of the bank, and had an active agency in their concerns.

In general, when there is a loan without any stipulation to pay interest, and when one has the money of another, having been guilty of no wrong in obtaining it, and no default in retaining it, interest is not chargeable. So, if before demand made, or other default, a debtor is summoned as trustee, and he practises no delay in making his answer, and no collusion with any other party, he is prohibited by law from paying the money; he is in no default, and not chargeable with interest. Oriental Bank v. Tremont Ins. Co. 4 Met. 1.

The case of Adams v. Cordis, 8 Pick. 260, in which the trustee was held liable for interest pending the trustee process, was decided on the ground that he held the money on a contract to pay interest for it, that the interest was part ol the debt, and the trustee continued to use it as his own. We think the evidence, especially the proof of the trustee attachments, should have been admitted and left to the jury to find whether the money had been wrongfully drawn or unjustifiably detained, with a direction that, if they had not, the plaintiffs were not entitled to recover interest.

Verdict set aside, and a new trial granted.