Cochrane v. Forbes

• Decision Date: 01 June 1929
• Citation: 166 N.E. 752,267 Mass. 417
• Parties: COCHRANE et al. v. FORBES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 417

166 N.E. 752

COCHRANE et al.

v.FORBES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1929.

Report from Superior Court, Suffolk County; Weed, Judge.

Action by F. Douglas Cochrane and others against Allan Forbes and others. Decree for plaintiffs, and case reported. Affirmed.

J. Noble and C. P. Bartlett, both of Boston, for plaintiffs.

E. F. McClennen, of Boston, for defendants.

RUGG, C. J.

This case was before us in 257 Mass. 135, 153 N. E. 566, and also in 163 N. E. 848. It now is presented by report on the correctness of a clause touching interest in an interlocutory decree entered on January 30, 1929, whereby the defendants were ordered to pay a specified sum, ‘with interest from December 15, 1920.’ Other matters included in this interlocutory decree are not reported. The case first was here on report as to the correctness of an interlocutory decree. That decree did not specify any sum of money to be paid by the defendants to the plaintiffs; it laid down some general principles for the adjustment of the rights of the parties; it contained no reference to interest. Hence that subject was not presented to this court at that time. The opinion on that report directed that modifications be made in the interlocutory decree and laid down general principles of law by which the sum to be paid by the defendants to the plaintiffs ought to be ascertained, but no computations were made and no sum specified. That was left to be determined in the future. The Superior Court had not by its report sought any direction and it received no instruction respecting interest. That court was left free by that opinion to deal according to law with the subject of interest if and when it should arise. Doubtless it would have been within the power of this court to have made a determination, about interest at that time. In these circumstances it cannot be regarded as having been decided at that time that no interest was to be allowed simply because nothing was said about it. That subject was left open. Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 344, 157 N. E. 651 (53 A. L. R. 867);Kennedy v. Commissioner of Corporations and Taxation, 256 Mass. 426, 431, 152 N. E. 747.

When the time came for entering a decree establishing the amount of the precise damages due from the defendants to the plaintiffs, it was the duty of the Superior Court to make such adjudication respecting interest as law and justice required. Day v. Mills, 213 Mass. 585, 100 N. E. 1113.

The case came before us the second time on a report wherein among numerous other matters it was recited that after the first rescript from this court the bill was amended and that the case was heard upon the decree to be entered pursuant to the rescript. It is manifest from the opinion in (Mass.) 163 N. E. 848, that several questions of difficulty were presented on this second report. The interlocutory decree there reported ordered the payment of interest. The question of interest was not discussed by the court and no reference is made to it in the opinion. That was not a decision that no interest was to be allowed or that the interlocutory decree was erroneous in providing for interest.

Without pausing to consider the contentions of the plaintiffs as to the effect of silence at that time upon the point, we consider on its merits the question of allowance of interest now reported. It has been stated to be the settled rule of this commonwealth that in a claim for unliquidated damages interest runs from the date of the writ and not from the date of demand for payment. McGrimley v. Hill, 232 Mass. 462, 464, 122 N. E. 186;Childs v. Krey, 199 Mass. 352, 358, 85 N. E. 442. That principle in its broad aspect is not of universal application because there are numerous instances where interest may be added from the date when damages may be due, in order that reparation may be done for the full injury sustained. Frazer v. Bigelow Carpet Co., 141 Mass. 126, 4 N. E. 620. It is not necessary to consider the doctrine of this case because we are of opinion that the damages here in issue were liquidated and that interest ran from the date of the demand. Liquidated damages with reference to the facts here disclosed mean damages, agreed upon as to amount by the parties, or fixed by operation of law, or under the correct applicable principles of law made certain in amount by the terms of the contract, or susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged. Unliquidated damages are those which cannot thus be made certain by one of the parties alone. Roberts v. Prior, 20 Ga. 561, 562; Chicago, Milwaukee & St. Paul Railway v. Clark, 178 U. S. 353, 372, 20 S. Ct. 924 (44 L. Ed. 1099);Canda v. Canda, 92 N. J. Eq. 423, 426, 112 A. 727 (13 A. L. R. 1029);Van Raalte Co. v. Solof Bros. Co., 89 W. Va. 66, 68, 108 S. E. 488;Western Lumber Co. v. Chicago, Rock Island & Gulf Railway (Tex. Civ. App.) 180 S. W. 644, 646;Northwestern Mutual Life Ins. Co. v. Hanger, 200 Ky. 118, 123, 124, 254 S. W. 326;Waterman-Waterbury Co. v. School District No. 4., 183 Mich. 168, 176, 150 N. W. 104;Norwich Pharmacal Co. v. Barrett, 205 App. Div. 749, 752, 753, 200 N. Y. S. 298;Sanborn-Cutting Co. v. Butler, 91 Or. 619, 624, 178 P. 228,179 P. 573; Workman, Clark & Co., Limited, v. Brazileno, [1908] 1 K. B. 968, 981; Wright v. Tacoma, ...