Hawley v. Barker

Citation5 Colo. 118
Case DateDecember 01, 1879
CourtSupreme Court of Colorado

5 Colo. 118

HAWLEY
v.
BARKER.

Supreme Court of Colorado

December, 1879


Error to District Court of Arapahoe County.

THE case is stated in the opinion.

Mr. WILLARD TELLER, for plaintiff in error.

Messrs. BUTLER, WRIGHT & KING, for defendant in error.

ELBERT, C. J.

In this case there was a general demurrer to the complaint; the demurrer was sustained and judgment entered thereon. The plaintiff brings the case to this court by writ of error. The complaint shows that on May 28, 1875, the plaintiff recovered a judgment against the defendant in the District Court of Gilpin County, in an action on a written instrument for the payment of money, for the sum of $1,136. A motion for a new trial was made by defendant, and remained undisposed of until March 26, 1877, when it was denied, and judgment entered on the verdict; the case was appealed to this court and judgment affirmed. The judgment was for the exact amount of verdict, and the present action is brought to recover interest on the amount of the verdict from the date of its rendition up to the time of entry of judgment thereon.

There is but little harmony among adjudicated cases upon the subject of interest. It is defined to be 'the compensation which is paid by the borrower of money of the lender for its use, and generally by a debtor to his creditor, in recompense for his detention of the debt.' (Bouvier Law Dic.)

Again, it is said to be 'a legal and uniform rate of damages allowed in the absence of any express contract, when payment is withheld after it has become the duty of the debtor to discharge the debt.' Minard v. Beans, 64 Pa. St. 411. [5 Colo. 119]

In Colorado, interest is regulated by statute, and in this case the plaintiff claims to recover under the provisions of section 2 of the Statutes (Gen. Laws, p. 513). The section is as follows:

'Creditors shall be allowed to receive interest when there is no agreement as to the rate thereof at the rate of ten per cent. per annum for all moneys after they become due, on any bond, bill, promissory note, or other instrument of writing, or any judgment recovered before any court or magistrate authorized to enter up the same within this State, from the day of entering up said judgment until satisfaction of said judgment be made; likewise on money lent; on money due on the settlement of account from the date of the last just entry that may have been made in account; on money received to the use of another and retained without the owner's knowledge, and on money withheld by an unreasonable and vexatious delay.'

In the case of Sammis v. Clark et al. 13 Ill. 544, substantially the same section was under consideration. Mr. Justice Trumbull says: 'It is a rule in the construction of statutes that the expression of one thing is the exclusion of another, and it may well be insisted when the legislature has enumerated a variety of cases in which creditors shall be allowed to receive interest, that it was not their intention to permit them to demand it in the cases not enumerated. Dwarris on Statutes, 713; King v. Cunningham, 5 East. 478; The Warden of St. Paul v. The Dean, 4 Price. Interest is not given by the common law for a failure to pay money when it is due, unless the parties have so agreed. Hawkins, book 1, Ch. 29, Sec. 6. Renn's Glass Factory v. Reid, 5 Cow. 608; Madison County v. Bartlett, 1 Scam. 70. It follows from these positions, that interest can only be recovered in this State in actions purely ex contractu, and where there is nothing tortious in the character of the indebtedness in the cases specified in the statute, or where there has been an express promise to pay interest or such a promise can...

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20 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • 21 maart 1908
    ...of the statutes on the subject can they be made applicable to a claim for damages caused by a change of grade. (Hawley v. Baker, 5 Colo. 118; Palmer v. Murray, 21 P. 127.) L. E. Armstrong, for defendant in error. The liability of a municipal corporation for damages caused to abutting proper......
  • Davis Cattle Co., Inc. v. Great Western Sugar Company, Civ. A. No. 74-W-1090.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 6 mei 1975
    ...In Colorado, interest is wholly a creature of statute and thus is not allowable on a common law, or equity basis. See Hawley v. Barker, 5 Colo. 118 (1879); Denver S. P. & P. R. Co. v. Conway, 8 Colo. 1, 5 P. 142 (1884); Hunter v. Wilson, 147 Colo. 36, 362 P.2d 553 (1961). See also Mitton v.......
  • Fail v. Community Hosp., No. 96CA0004
    • United States
    • Colorado Court of Appeals of Colorado
    • 10 april 1997
    ...sum that becomes due on the date the award is issued pursuant to § 5-12-102(2), C.R.S. (1992 Repl.Vol. 2). However, in Hawley v. Barker, 5 Colo. 118, 120-121 (1879), a case in which two years passed before judgment was entered, our supreme court held that interest is not recoverable on a ju......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • 9 mei 1911
    ...Compiled Statutes, or any other statute, can statutory authority be found for interest upon damages for change of grade. (Hawley v. Baker, 5 Colo. 118; Palmer v. Murray, 21 P. 127.) No proper bill was ever presented to the city. This case was brought upon the theory that the cause of action......
  • Request a trial to view additional results
20 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • 21 maart 1908
    ...of the statutes on the subject can they be made applicable to a claim for damages caused by a change of grade. (Hawley v. Baker, 5 Colo. 118; Palmer v. Murray, 21 P. 127.) L. E. Armstrong, for defendant in error. The liability of a municipal corporation for damages caused to abutting proper......
  • Davis Cattle Co., Inc. v. Great Western Sugar Company, Civ. A. No. 74-W-1090.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 6 mei 1975
    ...In Colorado, interest is wholly a creature of statute and thus is not allowable on a common law, or equity basis. See Hawley v. Barker, 5 Colo. 118 (1879); Denver S. P. & P. R. Co. v. Conway, 8 Colo. 1, 5 P. 142 (1884); Hunter v. Wilson, 147 Colo. 36, 362 P.2d 553 (1961). See also Mitton v.......
  • Fail v. Community Hosp., No. 96CA0004
    • United States
    • Colorado Court of Appeals of Colorado
    • 10 april 1997
    ...sum that becomes due on the date the award is issued pursuant to § 5-12-102(2), C.R.S. (1992 Repl.Vol. 2). However, in Hawley v. Barker, 5 Colo. 118, 120-121 (1879), a case in which two years passed before judgment was entered, our supreme court held that interest is not recoverable on a ju......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • 9 mei 1911
    ...Compiled Statutes, or any other statute, can statutory authority be found for interest upon damages for change of grade. (Hawley v. Baker, 5 Colo. 118; Palmer v. Murray, 21 P. 127.) No proper bill was ever presented to the city. This case was brought upon the theory that the cause of action......
  • Request a trial to view additional results

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