Still v. Hall

20 Wend. 51

Opinion

By the Court, Cowen, J.

It is well settled that interest is recoverable on moneys due upon a special agreement. Feeter v. Heath, 11 Wendell, 477,484. Williams v. Sherman,7 Wendell, 109. Interest runs from the time when the money falls due. Williams v. Sherman, 7 Wendell, 109, 112. The referees were correct, therefore, in allowing it, unless the principal sum stood open for liquidation, by the testimony offered in abatement. If so, and damages had been proved and deducted, interest should nobhave made a part of the balance found. The principal would have stood in the light of an uncertain demand, to be settled by -process of law. On such demands interest is not allowed.

We think the defence offered was admissible. It was not presented as a matter of set-off arising on an independent contract, but by way of recoupment of the plaintiff’s damages, by reason that he himself has not complied with his cross obligations, arising under the same contract. The law implied an obligation on his side, as parcel of the contract in question, to exercise ordinary care in the defendant’s service; and damages for not fulfilling that obligation are properly admissible in abatement, within the principle of Reab v. McAlister, 4 Wendell, 483, 492, and cases there cited : 8 Wendell, 109, S. C. on error.

The report must, therefore, be set aside, the costs to abide the event.