Dwyer v. United States
| Decision Date | 04 April 1899 |
| Docket Number | 142. |
| Citation | 93 F. 616 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | DWYER et al. v. UNITED STATES, to Use of ALLENTOWN ROLLING MILLS. |
Charles J. Hardy, for plaintiff in error.
Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
There being no bill of exceptions, the writ of error brings up only the judgment roll, and whatever questions may arise thereon. Two assignments of error only have been presented in argument.
1. It appears that the bond was in the amount of $12,000, and defendants contend that there can be no recovery in excess of that sum. It is well settled that no damages can be recovered in excess of the penalty named in the bond, but the costs which plaintiff is made to incur by the obligors' failure to pay on demand, and subsequent defense of the action, are within neither the letter nor the spirit of the rule. The total amount of the recovery in this case, exclusive of costs, is $11,861.68,-- a sum less than the penalty.
2. It is further suggested by plaintiff in error that a party is not entitled to interest on an unliquidated claim until after demand. The proposition is undoubtedly sound, but we fail to see its application here. Conceding that the plaintiff's demand was unliquidated, it appears that the verdict was 'for the plaintiff for $10,924 56/100, with interest, from July 16, 1897, amounting to $600 83/100, making a total of $11,525 38/100. ' It further appears that the summons and complaint were served on July 16, 1897. This was certainly a demand sufficient to set interest running. The judgment is affirmed.
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