Leete v. Pacific Mill & Mining Co.

• Decision Date: 06 September 1898
• Docket Number: 651.
• Parties: LEETE v. PACIFIC MILL & MINING CO.
• Court: U.S. District Court — District of Nevada

89 F. 480

LEETE v. PACIFIC MILL & MINING CO.

No. 651.

United States Circuit Court, D. Nevada.

September 6, 1898

J. D Goodwin, for plaintiff.

W. E F. Deal, for defendant.

HAWLEY District Judge (orally).

So far as the merits of this case are concerned, whether right or wrong, I gave the case my best thought and judgment; and it will be unnecessary for me to go over the ground again because I could add nothing to what I have said on that subject. Leete v. Mining Co., 88 F. 957. The only point involved in this motion which is necessary to consider is the question of interest. The judgment follows the prayer of the complaint, and gives interest on the principal sum from the date when defendant received it, and claimed to be the owner thereof. When a man receives money that belongs to another, he ought, on general principles of equity and justice, to pay the legal interest from the time of the demand for the payment thereof; but, if the statute does not allow it, interest should not be given except from the date of the entry of the judgment. Vietti v. Nesbitt, 22 Nev. 390, 398, 41 P. 151.

The general rule is well expressed in 11 Am.& Eng.Enc.Law (1st Ed.)p. 395:

'Where one receives an advantage or benefit from the use of the money of another, he is chargeable with interest. Interest is always recoverable in this country on money lent. Whenever money has been received by a party which ex aequo et bono he ought to refund, interest follows as a matter of course. ' Buttner v. Smith (Cal.) 36 P. 652.

The difficulty arises from the peculiar wording and punctuation of the statute of this state, which reads as follows:

'Section 1. Section four of the above act is amended so as to read as follows: 'Sec. 4. When there is no express contract, in writing, fixing a different rate of interest, interest shall be allowed at the rate of seven per cent. per annum for all moneys after they become due on any bond, bill or promissory note, or other instrument of writing, on any judgment recovered before any court in this state for money lent, for money due on the settlement of accounts from the day on which the balance is ascertained, and from money received to the use of another."' St. Nev. 1887, p. 82.

By strict grammatical rules, under the peculiar punctuation of this statute, and upon a casual reading thereof, it might appear that the allowance of interest was divided into two classes, and two classes only: First, for all moneys after they become due on any bond, bill, or promissory note, or other instrument of writing; second, on any judgment recovered before any court in this state for money lent, for money due on the settlement of accounts from the day on which the balance is ascertained, and from money received to the use of another. There is, however, no apparent cause for such a limitation. The common sense and sound reason of the subject-matter of the statute would naturally demand that such a construction should not be given. There is certainly no good reason why a party should not have interest for money lent, as well as interest on a bond or note or other instrument in writing; nor can any be given why a man should not have interest from a party who has received money belonging to him after he refuses to pay it over.

Entertaining these views, I was unwilling to decide the question without investigating the facts concerning the original adoption of this statute, from whence taken, and the changes made therein by amendments, etc. In the Statutes of 1861 of the territory when this statute was first...