Trotter, Douglass & Dunn v. Grant

2 Wend. 413

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the Court, Sutherland, J.

The referees ought not to have allowed the transferred account of Trotter & Douglass, nor interest on any items except those for cash advanced. The transferred account was with, and originally due to Trotter and Douglass, a different firm from the plaintiffs, and there is no evidence of the assent of the defendant to the transfer of that account to the account of the present plaintiffs ; nor is there any evidence of any agreement, on the part of the defendant, either express or implied, for the payment of interest.

A clerk of the plaintiffs testified, that it was the custom of the plaintiffs to charge interest, as in this account, hut he could not say that the custom had been acceded to by all the plaintiffs’ customers, and did not know that the defendant knew the custom of the store, or that he had ever settled any account with the plaintiffs. There is no evidence of any detailed account having ever been rendered to, and acquiesced in by the defendant. An account is proved to have been in his possession about the time of the hearing, but the witness who saw the account also testified, that the defendant then said that he always disputed the transferred account, and objected to the charge for interest. The letters of the defendant of the 3d of November, and the 8th Dec. 1825, speak of his intentions and desire to pay the balance due to the plaintiffs ; but there is nothing to shew that he had any evidence of such balance, except the mere statement of the plaintiffs. They do not prove that an account in detail had been rendered. If such had been the fact, it is surprising the plain, tiffs could not prove it by some more satisfactory evidence.

The referees allowed the defendant interest on all the cash paid by him from the day of payment. If there was no express direction on the part of the defendant as to the application of his payments, (and there appears to have been none,) the plaintiffs had a right, as I apprehend, to apply them, in the first instance, to such part of their account as ., ., . T . ...... they thought proper, and I perceive no objection, in prmcipie, to the referees applying those payments to satisfying the annual charges, as far as they were due at the time, and allowing interest only on the excess beyond .those charges, if any. The manner in which the plaintiffs kept their account, may well warrant the presumption that they intended so to apply the payment. The report must, therefore, be set aside, and referred back to the same referees, under the above directions.