Sutherland, J.
It is admitted, that on the 22c? of Marche 1822, when the report of the referees was made, the defendants were justly indebted to the plaintiff in the principal sum of $6882,91 ; and the only error complained of in the report of the referees, is in the interest allowed to the plaintiff. The principle upon which the interest is to be calculated, and the time to which, are the only questions for the determination of the Court»
^he
[420]*420SCs. Points settled by English ca-
. It Was justly remarked, at the bar, that there is no subject! in the whole range of the English law, ori which the author-^ ities are so little in harmony With each other, as on that of Merest; and the' American authorities are scarcely less contradictory. It may now, howéver, tie considered as settled, ^ng^anc^> that no interest is recoverable upon,money lent, money ha‘d and received, or paid, laid out, and expended, without an express contract for its payment, or proof that the money has actually beén used by the defendant, or of special circumstances, from which an agreement to pay interest may be inferred.' Where money is lent upon a written security, fixing the day oif payment, interest is" also recoverable from that day. But where goods are sold upon a credit, no interest is recoverable from the time when the credit expires, without an agreement, either express or implied, to pay it.
English cases stated anil considered.
In De Haviland v. Bowerbank, (1 Campb. Rep. 50) the Question was, whether an agent was responsible for interesé upon money had1 an'd received, to the use of his principal ; and if liable at all, whether interest Should run from the time-When the money was received, or from' the timé whea payment Was deina'nded. It Was held, by Lord Ellenborodgh, Ch'. J. that no- interest could be recovered; and he stated the rule to be, that where money of theplaintiff had. cometo the hands of the defendant, to'establish a right to'interest upon it, there should either be' a' s'pecifick agreement to that effect, or something should appear from' which a promise to pay interest might be inferred, or proof should be given of the money being used. De Bernales v. Fuller & others, (2 Cambp. Rep. 426) was also a case of money had and received. Interest was refused ; the rule laid down in De Haviland v. Bowerbank was reiterated, and was also stated to have been confirmed by the Court of King’s Bench. In a note to this case, Gordon & others v. Swan & others is stated, in which the Court of King’s Bench determined, that interest is not recoverable in an action for goods sold and delivered, to be paid for at a certain day. Bayley, J. observed, that the six months credit was for the benefit of the purcha[421]*421dor, and meant merely that he should not be arrested or sued till the expiration of that time.
In Calton v. Bragg, (15 East, 223) the question was, as to a right to recover interest upon money lent. It was argued, that there is a difference between the case of money had and received and money actually lent / but the distinction was repelled by the Court ;• and, after a consideration of all the authorities, the rule, as laid down by Lord Ellenborough, ia the cases already cited, was fully sanctioned and established. (Walker v. Constable, 1 B. & P. 306. Tappenden v. Randall, 2 id. 472, S. P.) His Lordship has been uniform and consistent in the application of this rule ; for in Kingston v. M'Intosh, (1 Campb. Rep. 518) he refused interest upon the sum insured in an action upon the policy; in Atkinson v. Lord Braybrooke, (4 id. 380) he decided, that no interest was recoverable in an action upon a foreign judgment; and in Crockford v. Winter, (1 id. 129) he refused interest in an action for money had and received, although the money had been obtained by fraud.
Before the time of Lord Ellenborough, it had been held, in the case of Blaney v. Hendrick, (3 Wils. Rep. 205 ; 2 Bl. Rep. 761, S. C.) that interest was recoverable upon an account stated, and upon money lent; (Robinson v. Bland, (Bull. N. P. 274-5, S. P.) and in Trelawney v. Thomas, (1 H. Bl. 305) that it was also recoverable upon money laid out for the use of another, and for money lent, and that the two cases stood upon the same ground of reason, justice and equity ; and in Mountford v. Willes, (2 B. & P. 337) interest was allowed in an action for goods sold, from the expiration of the credit given.
Numerous as have been the cases in England, in which this question has been raised and discussed, very little has been said by any of the Judges as to the reason or principle upon which the allowance or refusal of interest depends, Lord Ellenborough, and the other Judges who have gone with him upon the subject, seem to consider interest as a demand altogether distinct from, and independent of the original debt; and not as growing out of, or necessarily connected [422]*422with it.
[421]*421Little said fc SDfo principle “erest^ailow* able.
demom^' diatinet from the principal.
[422]*422Why a promise to- pay interest should be implied* from a written instrument to pay money by a day certain, and-not from a parol promise, as was held by Lord Ellenbrough, in-Gordon v. Swann, I must confess I cannot understand. The nature of the undertaking is not altered- by its being reduced to writing, A parol promise to repay a sum of money borrowed, by a given day, is as obligatory, between the original parties, as though it had been put into the form of a promissory note; and I can perceive no reason why the-breach of the one should not be followed by the same-legal consequences, as the breach of the other.
Strictness of noTadoptetTin this country,
ded^in New-York,
The- strictness of' the English Courts, upon this subject,. has never-been adopted by this Court, or, I may say, generally, by the Courts of this country. Thus, in Pease v. Barber, (3 Caines’ Rep. 266) it was held, that interest may be recovered under a count for money had and received, against the express decision of the- English C. B. in Walker v. Constable, (1 B. & P. 307) and. Tappenden v. Randall, (2 id. 472.) The Supreme Court there- say, “ The action for mo[423]*423■ccey had and received, is an equitable action, and the party •must shew that he has equity and conscience on his side. The rule, in Equity, is, to allow interest, in many cases, for money had and received.
In Liotard v. Graves, (3 Caines’ Rep. 234) it Was held, ioy all the Judges, that interest is recoverable upon money paid or advanced, from the date of its advancement; but that, upon an account for goods sold, no interest is recoverable, unless there be evidence of an agreement to pay it, ■ intil a liquidation of the account takes place. Newell v. Griswold, (6 John. Rep. 45) also decides the latter point.
In Beals v. Guernsey, (8 John. Rep. 446) which was an action of trespass against a Sheriff, for illegally taking the plaintiff’s personal property, interest was allowed, by way of damages. The Court say, “ The plaintiff ought not to he deprived of his property, for years, without compensation for the loss of the use of it; and the jury had a discretion to allow interest in this case, as damages. It has been allowed in actions of trover, and the same rule applies in trespass, when brought for the recovery of property,”
In The People v. Gasherie, (9 John. Rep. 71) interest was allowed on money which had been collected and applied, by the testator óf the defendant, to his own use, from the time when it ought to have been paid over. The Court advert to the (then) late English decisions, in which interest had been refused on liquidated sums, and on money obtained by fraud, and express their dissatisfaction with them. They say, “ If the defendant retains, and converts to his own use, the plain= tiff’s money, he ought to pay interest. It is allowable in actions for money had and received. In trover, for a speeiñck chattel, the jury may, and, in many cases, ought to allow interest for the detention, by way of damages.”
The case of Kanes v. Smith, (12 John. 156) falls within the principle of unliquidated accounts for goods, &c. The advances made by the plaintiffs were not in money, but in cargoes ; that is, in merchandize. The defendant furnished a cargo of wine, which the plaintiff’s ship took to the East indies, under a special agreement as to the mann erin which the proceeds should be disposed of. One part of the agree-[424]*424meat was, that the plaintiffs should be reimbursed out of thp nei proceeds of the wines, for their advances ; and for the surplus of such proceeds, to furnish cargoes to the defep^ants, or bills on London, allowing interest from the time of the sale in India on the overplus ; and should the wines not net sufficient to pay the advances, the defendants fvere to make, up, the deficiency. Here, then, was á special agreement, on the part of the plaintiffs, to pay interest on the overplus, if the wines should produce more than their advances: but if they should produce less, the defendants were Ip make up the deficiency. Nothing was said about interest, from which the inference is very strong, that it was the understanding of the parties that they were not to pay interest. It was, therefore, properly disallowed to the plaintiffs, either upon the ground that it was an unliquidated account, in relation to goods, wares and merchandizes, or upon the ground of the special agreement.
^Massachusetts
The spme general principles have been established ip Massachusetts and Pennsylvania. (Fowler v. Shearer, 7 Mass. Rep. 24. Wood v. Robins, 11 Mass. Rep. 504. Weeks v. Hasty, 13 Mass. Rep. 218.) These were actions for money paid, and money had and received, and interest was recovered from the time the money was paid or received.
Pennsylvania.
So in Rapelie v. Emory, (1 Dall. Rep. 349) interest was allowed on money had and received. It was put upon tfye same ground as money lent, and held to be clearly distinguishable frqm the case of goods sold and delivered, where no money pass.es between the parties. In Commonwealth v. Crevor, (3 Binn. Rep. 123) Tilghman, Ch. J. says, it is considered as settled, th.at interest shall be recovered against a man who has received the money of another, and holds it against his consent. The Lessee of Dilworth v. Sinderling, (1 Bin. Rep. 488) is very analagous, so far as the question of interest was concerned, to the one now under consideration. There a trustee was allowed interest upon advances 'made by him for the use of the cestuy que trust. Those advances were part' of a general unsettled account with the trqst estate, composed of charges for expenses and advances in erecting buildings, &c. on the one side, and- of credits for [425]*425rant received on the other. The account was of thirty « , i « , years standing; and the principal advances on which inte■rest was allowed, were made eighteen years before the trial. ° J . The cesiuis que trust were not consulted upon the propriety of making the advances; nor was any account ever rendered .by the trustee. It was admitted, that the advances made were judicious and proper 5 and that the trustee had discharr ■gcd his trust with fidelity. Tilghman, Ch. J. in delivering the opinion of the Court, says, “ It seems to have, been formerly held, that interest was not allowable on an account for money lent and advanced. That opinion gradually declined, upon more mature reflection, and it may now be affirmed to be the settled law, that interest js recoverable for money lent and advanced. Is there any thing peculiar in this case, to distinguish it from the general rule ? If the trustee had borrowed money, he must have paid interest, which would have fallen on the trust estate. Now where Is the difference to the cestuy que trust, whether interest is paid to the trustee or to a stranger ? There is no just cause of complaint, because the jury have allowed interest.”
These cases appear to me to put the claim of interest -upon its true principle., 1 hey consider it as a necessary incident to the principal debt; and imply a promise to pay ,7, 7 . ; i J: . It from the day the debt becomes due, if it is not paid. This promise is supported by the universal obligation which rests upon every man to render a just equivalent for the use or detention of that which does not belong to him. The value of money is the legal rate of interest. That, then, shall be paid.
American ca-s¡der jntei.Cil¿ a,n incident to the principal debt.
In actions sounding in tort, where no contract can be supposed to exist, the same rule of compensation may be adop- * e . ' 1 ted for th-e improper detention of specific articles of personal property; but it shall be given by way of damages, and act as interest.
interest ai1?wed m actions sounding in tort-
No interest shall be allowed upon an unliquidated account -fur goods, wares, and merchandize, without an agreement to allow it either express or implied •, because the balance of the account, only, constitutes the debt, and, until that is ascertained, there is, strictly speaking, no debt due. This appears from the manner in which an account may be proved»
Merest not ^q’^tea1 ac" count; anc. wh5r‘ [426]*426It is not necessary to shew the delivery of each article ; but proof that some were delivered; and that the plaintiff keeps honest and fair books of account, &c. is evidence of the de^vei7 °f the articles charged in the book. Thus, the whole account is considered as one transaction. But an unliquidated account for money paid, laid out and expended, stands upon a different footing. Each advance of money is a loan, distinct and independent of any other advance. It is not, strictly speaking, matter of account. Each charge must be specifically proved. The proof of several advances, together with the keeping of correct books of account, > would not be evidence of the other advances charged in the same account. Each sum paid, or laid out, must therefore be considered a debt, due from the time it is advanced, and, of course, carrying interest, unless there be some agreement to the contrary.
The reason sometimes given, why an unliquidated account should not carry interest, viz. “ that the defendant does not know how much he has to pay,” can not he the true one. It would be a sufficient answer to it, to say that he can always ascertain.the balance by application to the plaintiff. But again, an agreement, either express or implied, to pay interest on the different items of an account, either from the day of their.delivery, or after a given credit, will be effectual. But, notwithstanding such agreement, the defendant is as ignorant of the balance of the account, as though it had not been made. If such ignorance, therefore, was the ground for refusing interest, it would not and ought not to be allowed," notwithstanding the agreement. But such agreement breaks up and destroys the individuality of the account, and renders each item a distinct independent debt, due at the time agreed upon, and, of course, carrying interest from that time.
It is settled thaUnteresHs allowable on af °cashmUaccount.
But whether this reasoning be sound or not, is of very l'tíle importance. For I conceive the principle which it is intended to illustrate to be fully established in the cases of Liotard v. Graves, and of the Lessees of Dilworth v. Sinderling & Lewis, already cited, viz. that an unliquidated account for money paid, or lent, does carry interest. When[427]*427ever it is said, therefore, that no interest is recoverable upon an unliquidated account, an account other than for money lent, or advanced, or had and received, must he understood.
To apply these principles to the case before us. ín May, ' 1813, Reid entered upon the duties of active agent for the defendants. The case states, “ that, at that time, the stock, materials and funds of the defendants were insufficient to keep the factory in operation ; and large advances were requiredfor that purpose. No express authority or direction was given to Reid to make the advances ; but if they were necessary to keep the factory in operation, and no provision was made by the company for them, an authority to the agent to procure them was necessarily implied, ft must be understood that the defendants were well informed of the state of their affairs when Reid entered upon the agency» Knowing, then, that advances were necessary to keep the works in operation, and it being the business and duty of the agent to keep them in operation, the fact of his appointment as agent, under such circumstances, implied an authority to make advances, or borrow money for the purpose. His skill and fidelity in the management of the concerns of the company have not been called in question. It is not pretended that the advances exceeded the exigencies of the concern, or that they have not been proved and established with the most scrupulous exactness.
Principles ap-> ease*t0 i>re3m*
The case states that the debtor side of the plaintiff’s account consisted' of more than five hundred charges, for distinct advances, each of which was clearly proved. The particular purposes to which the money thus advanced was applied is not stated in the case. That they were such as came within the scope of the authority of a general agent, there can be no doubt, or the plaintiff’s demand would have been resisted on that ground. But the only ground of complaint is, that the intestate did not render his account; and apprise the defendants that it was a losing concern. No reluctance was ever manifested by him to account. His account was never asked for until 1819, when he stated to some of the directors that the company were in his debt s [428]*428but no formal demand of his account was then made. Her appears ¡.q ilayc excrte¿ himself faithfully and successfully ir> collecting the fund's of the company, and applying them to^le discharge oftlieir debt; and there is nothing in the case from which'the slightest impression can be derived that the company could or would have made other or more" advantageous arrangements, ifthéy had been fully apprised-of the state of the account. All the directors, and most of the stockholders of the company, resided- in- the same City with the plaintiff, where the business-was conducted'; and-it is hardly to'be supposed that they weré not individually informed of the true state of their affairs, although no formal rePorf: was ever ma(H 1° & board of directors. It appears to me, therefore, that upon every principle ofjustice and equity,Reid's representatives are entitled to interest upon the moneys advanced by him for the use'of the company, at least until 181 O', when some of the individual directors asked- him for his account.
I think he is not entitled to interest upon-his' compensatien as agent. No agreement was ever made as to the amount which he was to receive. His- predecessor-, it is true, had received $1250 ; but the company were nob concluded by that circumstance from lessening the compensation to' him, if, either from the diminished duties of- the station, or the state of their funds, they thoughtit expedient. There was nothing by which either party was concluded-as-to the amount of compensation. It could be recovered only upon a quantum, meruit; and must be considered as an uncertain- and unliquidated demand ; and, therefore, cannot carry interest until demand made. (Trelawny v. Thomas, 1 H. Bl. 305, per Gould, J.) With these modifications, X am of opinion that the report of the referees should be confirmed.
The questions.
Savage, Ch. J.-
The questions for the decision, of the 1 Court are, whether the plaintiff" is entitled to interest on any part of her demand ; and if any, on what part,, and for what time.
Cas6 stated.
To decide these questions correctly, it seems to me imp0rpant to understand what was the agreement between the [429]*429parties ; and if nothing was expressed as to the mode of • ... . , , , , . , carrying on the business, what they must have understood to be the contract between them in this respect. Reid was a stockholder from the organization of the company. He knew, and so did the defendants, how the business had been carried on. Whether it had been profitable while Kane was agent, does not appear ; nor whether he made the necessary advances during that time. In 1809, five stockholders took a lease of the works for three years. In May, 1812, a partnership was formed between the defendants and Reid ■S/Alsop, in which it was stipulated that Reid fy Alsop should make the necessary advances of money, and receive interest for it. They did so ; but whether the co-partnership was profitable or otherwise, does not appear, except that, on settlement, a balance was due to the defendants.
It is stated in the cáse, that when Reid was appointed agent in 1813, “ the stock, materials and funds of the defendants were insufficient to keep the factory in operation, and large advances were required for that purpose.” What, then, was the understanding of the parties as to the manner of carrying on the business 1 How were those advances to be made, and by whom ? And on what terms ? Without funds the business could not be prosecuted. Had the defendants intended to furnish the necessary funds themselves, they would have made a further call.upon the stockholders* Not having done so, they must have intended that the advances should be procured in some other way ; and, of course, by the agent, as he was the only active person engaged in the business, and had, the preceding year, made the advances in the same business. It was certainly no part of his duty, as agent, to make advances from his own funds, Suppose it had not been in his power to do this : the defendants did not furnish them; and suppose that, under these circumstances, he had borrowed the necessary amount ; would it be contended that he should pay the interest himself? Why should he do this ? was he to be benefitted by the use of the money ? Or was it the defendants, the principals for whom the agent acted, who were to receive the con-
[430]*430templated profits from the use of the money borrowed ? The! agent had no farther interest in the profits than as a stockholder. It was the same thing to the defendants, whether they had advanced the funds themselves, or had borrowed jn the first case, they would have diverted so much money, which was producing them, at least, the interest; in the second, they were taking the interest of their own money to pay the interest of that which was borrowed to carry on the factory : so that whether the agent borrowed the money of others, or advanced his own, was precisely the same thing to the defendants. The interest of the capital employed, is certainly a proper item to charge in ascertaining the profit or loss in the prosecution of any business ^ and had the business, in this instance, been profitable, Í apprehend the objection would not have been thought of. On the other hand, is there any principal of law or justice, which requires an agent to carry on the business of his principal at his own expense ?
[429]*429jt was lm($ero stood that the al'rancei0'*''
but principals' hK not own for 3iis benefit $ for the
[430]*430And was the as if he had horrowed the them.
terest^be recoverabie on account at6for monies.
It ivas contended on the argument, that interest is not recoveraMe on an unliquidated account for monies, unless there be an agreement to pay interest, express or implied, or a fraudulent detention or vexatious.delay ; and that the case; under consideration comes within that principle. A review of some of the cases on this subject may be of use.
, English cases.
The oldest case cited is that of Sweatland v. Squire (2 Salk. 623, A. D. 1699,) where it was said by Powell, J. that interest is recovered by way of damages, when damages are recovered ratione detentionis debiti; but not when damages only are recovered; for interest is not recovered oo casione dampnorum. In the Attorney General v. The Brewer's Company, (1 P. Wms. 376, A. D. 1717) the defendants were trustees of a charity ; and, by improving the trust estate, had brought the charity in debt.- On rendering an account, Ld. Cowper refused to allow interest before the confirmation of the master’s report; for, until then, it was not a liquidated sum. In Harris v. Benson, (2 Str. 910, A.D. 1732) the Chief Justice said interest had never been allowed for money lent, without a note. In Robinson v. Bland, (2 Burr. 1085, A. D. 1760) it was decided, that interest was recow [431]*431erable on money 'ent, from the time when it was agreed to be paid. In Borret v. Goodere, (1 Dick. 428, A. D. 1769) Lord Camden said there is no instance whe e interest is given on an open mutual account, without some particular circumstances. That was a case of cash advances, as appears from a full report of it in 6 hr. P. C. 364. Blaney v. Hendricks, (2 Bl. Rep. 761, A. D. 1770) allowed interest on an account stated; and the Judges remarked, that it was properly allowable on money lent. In Trelawney v. Thomas, (1 H. Bl. 304, A. D. 1789) Gould, J. said interest was recoverable on money lent; and that money laid out for the use of another, and money lent, stood on the same ground in respect to reason, justice and equity, but that no interest should be allowed for work and labour, or goods sold and delivered. Upon the authority of this case, Livermore, in his treatise on agency, (vol. 2, p. 17) lays down the rule, that an agent who has advanced money for his principal, will be entitled to interest from the time of the advance, in Craven v. Tickell, (1 Ves. Jun. 63, A. D, 1789) Lord Thur-low said, money paid to workmen, who were to have been paid by the defendant, was money advanced for him ; and that it was the constant practice at Guildhall, either by the contract or in damages, to give interest upon every debt de* tained. In Walker v. Constable, (1 B. & P. 307, A. D. 1798) the Court were of opinion that, in an action for money had and received, no interest could be recovered. In Mountford v. Willes, (2 B. & P. 337, A. D. 1800) interest was allowed on goods sold, after the term of credit agreed on had expired. In Tappenden v. Randall, (2 B. & P. 471, A. D. 1801) the rule, as previously laid down in Walker v„ Constable, was adhered to; and Moses v. M’Farlan, (2 Burr. 1005) was cited, where it is incidentally said, that the plaintiff can recover no more than the money retained by the defendant, against conscience. In De Haviland v. Bowerbank, (1 Campb. Rep. 50, A. D. 1807) Lord Ellenborough said, where money of the plaintiff had come to the hands of the defendant, interest ought not to be recovered, without an agreement, or something from which an agreement might ■fee inferred, or proof that the money had been used» In De [432]*432Bernales v. Fuller, (2 Cambp. Rep. 426, A. D. 1810) he ajherec| fo the same rule; and the whole Court of K. B» concurred, that the money should not draw interest even aft ^er a demand °f payment; and afterwards, in Calton v. Bragg, (15 East, 223, A. D. 1812) the same Judge said that Ld. Mansfield had sat in the K. B. for upwards of 3Q years, and Ld. Kenyon for more than 13 years ; that he had been there above 9 years ; and during all that time, no case had occurred where interest had been allowed upon money lent, without an agreement for it, or for the payment of the principal, at a certain tipie, qr under special circumstances? from which a contract might be inferred.
Pennsylvania-
' jn Rapelie v. Emory, (1 Dall. Rep. 349, A. D. 1788) if was ruled, by Shippen, President, that when one man has received the money of another, and retains it without his consent, it is to he considered in the same light as money lent, and should carry interest. In Crawford v. Willing, (4 Dall. Rep. 289, A. D. 1803) Smith, J. said, “ Whatever may have been the doctrine in former times, we have traced, with pleasure, the progress of improvement, upon the subject of ■interest, to the honest and rational rule, that wherever one; man retains the money of another, against his declared will, the legal compensation for the use of money shall be charged and allowed ; and that, in the case of goods sold, inte3 rest should be allowed after the time of credit had elapsed,ánd demand of payment was made. In Lessee of Dilworth v. Sinderling, (1 Bin. Rep. 194, A. D. 1808) Tilghman, Ch„ J. declared the law to be settled, that interest is recoverable on an account for money lent and advanced ; and it was allowed to a trustee, upon advances laid out in improvements upon the trust estate, it appearing that the improvements were necessary and proper. In The Commonwealth v. Crevor, (3 Bin. Rep. 123, A. D. 1810) he says, it is settled, that interest shall be recovered against a man who receives the money of another, and holds it against his consent. In Brown v. Campbell, (1 Serg. & Rawle’s Rep. 179, A. D. 1814) he again says, the rule is, to allow interest where the defendant has retained the money of. the plaintiff unlawfully, and against his consent: that, until thp defendant was informed that the plaintiff’s money was applied to his [433]*433ase, he was in no default, and, therefore, ought not to pay interest; but, being informed, he became a wrong doer in withholding payment, and, therefore, should pay interest.
In Wood v. Robbins, (11 Mass. Rep. 504, A. D. 1814) the defendant had fraudulently obtained possession of the plaintiff’s money ; and Putnam, J. after reviewing most of the authorities, says, there may be cases where interest should not be allowed, as where the defendant was a mere stockholder, ready to pay the money to the party entitled ; but when the defendant has frauduletly obtained the money, or wrongfully detained it, he must be charged with interest. In Winthrop v. Carleton, (12 Mass. Rep. 4, A. D. 1815) the plaintiff, as consignee, made necessary advances, and recovered interest on them after suit brought.
In Connecticut, as appears by Selleck v. French, (1 Con. Rep. N. S. 32, 35, per Swift, J. A. D. 1814) interest is allowed on the ground of a contract expressed or implied, or as damages for the breach of a contract, or the violation of some duty ■. e. g. 1. Upon an express contract: 2. Upon an implied contract, arising from usage of trade, or former dealings between the parties ; 3. Upon a written contract to pay at a day certain, as on bills and notes, and on a policy after the money becomes due : 4. For goods sold, after the time of credit has expired : 5. For money received to the use of another, and retained contrary to duty; <3. For money obtained fraudulently, if the tort is waived, and assump? sit brought: 7. On a liquidated account: 8. On book account for services performed or articles sold, when, from the nature of the transaction, it appears not to be the intention of the parties that the services or articles were to rest on the footing of a mutual account on book : 9. But where there are mutual accounts, founded on mutual dealings, unless there be some promise or usage to pay interest, it will not be allowed. In such cases, no time of payment is stipulated ; each party is making payment; the balance is constantly changing; and the presumption is, that no interest is to be charged. In the case then before the Court, interest was allowed ; there were no mutual dealings ; the advances were all on the part of the plaintiff; there was no liquidated account, nor promise, nor usage; but the debt was [434]*434due, and payment unreasonably delayed. The particulars circumstances of the case are not stated. (See, also, Thompson v. Stewart, 3 Con. Rep. N. S. 171, 185, A D. 1819.)
[433]*433
Connecticut.
[434]*434
United Slates,
New-York.
In Gammell v. Skinner, (2 Gall. Rep. 45, A. D. 1814) in-, terest was denied on seaman’s wages, until after demand made ; and where there had been no actual demand, it was held to run from the commencement of the suit.
In this state there have been several decisions on the subject of interest, which apply to most of the questions under consideration. Liotard v. Graves, (3 Caines’ Rep. 226, A. D. 1805) is a leading case. There, an account current had been rendered in 1797, containing a charge of interest, which was not objected to in the succeeding correspondence between the parties. Spencer, J. says, that for goods sold and delivered, unless there be evidence of an agreement to. pay interest, none is recoverable until liquidation ; that an account transmitted to a debtor, and acquiesced in, becomes liquidated, and interest is allowable ; that on money advanced interest is legally demandable ; and so by the usage of a particular trade. Thompson, J. said the plaintiffs had a right to charge interest on the money advanced ; that the account could not be considered settled, and on that ground carrying interest; that it was merely an account current between the parties ; and, unless some usage or practice was shewn, to. warrant the allowance, he should think interest ought not to, be calculated, except on the money advanced, Livingston,, J. said, “ If there be no special agreement between the parties, or usage of trade to the contrary, it ought to be allowed on all moneys advanced from their respective payments. One account is rendered as early as 1797, in which interest is calculated, and yet no objection is made to it in the succeeding correspondence, from which I conclude such charge consisted with the understanding of the parties.” Kent, Ch„ J. said, “the account exhibited is not an account liquidated, but a naked account current; and interest is allowable only on such items in it as are for moneys advanced, except the usage of trade has provided some particular rules o.n the subject.” At the next term, the case of Pease v. Barber, (3 Caines’ Rep. 266, A. D. [435]*4351805) was decided. It did not state any facts, but the ques- ,. , , , . , tion was submitted, whether interest could, in any case, be Recovered under a count for money had and received. Kent, C. J. delivered the opinion of the Court, that interest may be recovered in such an action. He says, there may be cases in which the defendant ought to refund the principal merely ; and there may be other cases in which he ought, ex equo et bono, to refund the principal with interest. Each case will depend upon the justice and equity arising out of its peculiar circumstances, to be disclosed at the trial. In an anonymous case, (1 John. Rep. 315, A. D. 1806,) the Court said the general rule is, that interest is not to be recovered on unliquidated damages, or for an uncertain demand. The question arose in an action upon a policy of insurance, and they said it was a case for the discretion of a jury. Newell v. Griswold, (6 John. Rep. 45, A. D. 1810) was assumpsit for goods sold ; and there were mutual accounts $ but no account stated, or balance struck. The Court said, “there is nothing in the course of dealing between the parties from which an intent or agreement to allow interest can be inferred. It is, therefore, not a case of interest.” In Holliday v. Marshall, (7 John. Rep. 213, A. D. 1810) the plaintiff had procured an appraisement of certain buildings under a covenant in a lease, of which the defendant had notice. The plaintiff claimed interest on the appraisement; but the Court said it was not conclusive; that the value of the buildings was open for inquiry at the trial ; and the damages were, therefore, unliquidated ; and no interest was recoverable. In The People v. Gasherie, (9 John. Rep. 71, A. D. 1812) a recovery was had for money retained by a loan officer, with interest from the time when he ought to have paid it into the treasury. The Court said, “ It is just and reasonable, in itself, that the defendant, who retains and converts the money of another to his own use, should pay interest for that use.” And they declared Crockford v. Winter, (1 Campb. Rep. 128,) and De Bernales v. Fuller, (2 Campb. Rep. 426) not to be law here. In Kanes v. Smith, (12 John. Rep 156, A. D. 1815) the plaintiffs, at New-York, sent to the defendants at Madeira, pursuant to an agreement, cer[436]*436tain vessels, which were to he employed in carrying wines to the East Indies. The plaintiffs were to advance § of the invoice price of the wines, to be reimbursed out of their ne* Proceeds; and should these be insufficient to pay the advances, then the defendants were to makeup the deficiency. The wines, contrary to the expectation of the parties, did not prove sufficient to re-imburse the plaintiffs for their advances ; and on the question whether the interest Should be allowed upon these, the Court said the plaintiffs' wére not entitled to interest, till the deficiency was ascertained and notified to the defendants ; that the wines went in the plaintiffs’ vessel; that they alone could ascertain the proceeds,- and furnish the accounts of sales to show the balance % that the defendants were not in default, till the balance was ascertained and notified to them. Thomas v. Weed, (14 John. Rep. 255, A. D. 1817) Was an action of debt upon the' statute, against a constable, for not returning- an execution. The Court recognize the law that interest is recoverable for money received by the defendant for the plaintiff, or lost by negligence •; but the form- of the action precluded its allowance in that case. In Walden v. Sherburne, (15 John. Rep. 424, A. D. 1818,) Spencer, J. says, “ We have uniformly decided, that after an account has been liquidated, it carries interest; and that an account is to be considered liquidated after it is rendered, if objections- are not made to it.”
In Campbell v. Mesier, (6 John. Ch. Rep. 24, A. D. 1822) Chancellor Kent says,' “ it is the settled rule in the law of this state, that money received or advanced for the use of another carries interest after a default in payment ; and it is a very resonable and just rule.”
From an examination of these cases, it seems that interestis allowed, 1. Upon a special agreement: 2. Upon an implied promise to pay it; and this may arise from usage between the parties, or usage of a particular trade : 3. Where money is withheld against the will of the owner : 4. By way of punishment for any illegal conversion or use of another’s property : 5. Upon advances of cash, on the authority of Liotard v. Graves.
[437]*437Among all the cases examined, howevef, I do not find any one precisely parallel to the present. Here, both parties Were upon the spot, when the business was transacted. The agent acted almost constantly under the eye of his principals. The reason why the Court would not give interest in Kanes v. Smith, (12 John. Rep. 156,) till rendering the account, was, that the plaintiffs alone knew the fact that the proceeds of the wine did not re-imburse the advances. In this cáse, if may be said, that RmVZ alone knew he had not been re-imbursed for his advances by the proceeds of the glass. He alone kept the books; but, it is equally certain, that the defendants knew of his advances ; and they might have known the state of the accounts, by inspecting the books. They often held their meetings at Reid’s store3 where the books were undoubtedly kept.
But Was it not his duty, as agent, to have rendered accounts regularly to his principals; and to have kept them advised'of the true state of their affairs ? There certainly appears to have been a culpable negligence on both sides» The defendants do not seem to have appointed any committee, to examine Reid’s accounts, as they did Kane’s, when he was their agent.
The defendants, having agreed to pay interest upon the advances made by Reid & Alsop, admitted, in that instance, at least, the propriety of such a charge against them. And, on the whole, I am of opinion, that from the manner in which the business had been done, the year next previous to the appointment of Reid as agent; from this being done, with a full knowledge on both sides that large advances were necessary ; if the defendants did not mean to pay interest, they ought so to have informed Reid, in order that he might not be using a large capital in their service when it was to be totally unproductive to him. Although Reid had the means of ascertaining the true state of the accounts, yet he had not the sole means. The defendants were equally able to determine by an inspection of the • books whether he had been re-imbursed for his advances. The ease does not inform us that any intimation was given by [438]*438a balance due to him, till the 1st of January, 1819» though the factory was burnt on the 3d of May, 1815. Nor does it appear, that before the 1 st of January, 1819, any step whatever was taken . by the defendants to ascertain their g^n¿jng wj^ After that time, Reid alone was in fault, as he neglected to furnish an account, and none was renderec* after his death. I think, therefore, that interest ie properly chargeable on the monies advanced from the time °f such advanoec respectively to the time when there was an attempt by the defendants to liquidate and settle the account.
bellowed till 1st January, vahees 8l1"
ílary0t0nt^e
*be compensation for Reid’s services, no sum was ever agreed upon between the parties; and his claim for these was never liquidated till it was done by the refereesínteres t ought not, therefore, to be allowed on his salary.
Woodworth J.
being a stockholder in the company, gave no opinion.
Rule.
Rule : That the report of the referees, made in this cause, he set aside, so far as it allows interest to the plaintiff, after the 2d day of January, 1819 ; and on the charges for the salary due the intestate ; and that, in pursuance of the stipulation of the parties, the cause be again referred to the referees appointed therein ; and that they calculate, and report the amount due to the plaintiff for interest up to the 2d'day of January 1819 ; and in addition to the sum reported to be due to her ; and that the calculation be made by allowing interest cm the receipts and advances of cash, from the time of make, or receiving the same, to the said 2d day of January ; and that neither party be allowed, as against the other, costs of the motion to set aside the report.
[439]*439General Rule.
In Supreme Court, October term
November 13, 1824. $
Ordered, That when a bill of exceptions is taken at the Circuit, the party obtaining a verdict may notice the bill of exceptions for argument as frivolous, and the same shall have a preference, as in case of a frivolous demurrer, unless the party taking such exception shall, within four days after the trial, or before the same is noticed for argument, obtain, and serve on the opposite party, a certificate of the Circuit Judge, that there is probable cause to stay the proceedings, until the cause is reached in its regular order on the calendar.
[441]*441CASES IN ERROR*
The same view is taken of this subject, in Mr. Jefferson’s letter, cited by Butler, arg. in reply, supra.