Murdock v. Lewis

• Decision Date: 17 May 1887
• Parties: MURDOCK, Respondent, v. LEWIS, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 234

MURDOCK, Respondent, v. LEWIS, Appellant.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

DYER LEE & ELLIS, and BERRY & RICHEY, for the appellant The contractual obligation to pay interest is regulated and limited by statute, and can not exist in law if not conformable to the statute. Compton v. Johnson, 19 Mo.App. 88. Where the statute allows interest upon a promise in writing, without the writing there can be no claim of interest. Rev. Stat., sects. 2724, 2728; see, also, Moore v. Bank, 22 Mo.App. 684; Sammis v. Clark, 13 Ill. 544; Hitt v. Allen, 13 Ill. 592; Myers v Walker, 24 Ill. 133; Close v. Fields, 3 Tex. 232. The mere fact that one is a depositary, or bailee, of money, does not, in itself, carry a liability for interest. 1 Am. Law Cases, 637. It will not be here questioned that the defendant may set up the want of lawful consideration, as a complete defence against the note, or any part of the sum therein. The paper has never been negotiated, and the controversy is between the maker and payee. 1 Chitty's Cont. 26; Thatcher v. Dinsmore, 5 Mass. 301. A note given without any existing (or concurrent) indebtedness, is void. Rollins v. Lashus, 74 Me. 218; The State v. Illyes, 87 Ind. 405; Parsons v. Pendleton, 59 Ind. 36. There was no moral obligation which would support the promise. Dodge v. Adams, 19 Pick. 429; Ehle v. Judson, 24 Wend. 97; Cook v. Bradley, 7 Conn. 57; see, also, 2 Greenl. on Evid. 126; Hawley v. Farrar, 1 Vt. 420; Turlington v. Slaughter, 54 Ala. 195; Updike v. Titus, 13 N.J.Eq. 151; Smith v. Ware, 13 Johns. 257. The answer distinctly alleges that there was no subsisting debt. Nervous and physical prostration made him " not able to withstand the threats, intimidation, and overbearing persistency" of the plaintiff. There was in full force, that " " " " undue advantage" which Thompson, J., in Nelson v. Betts (21 Mo.App. 219), declares effectual to vitiate a contract so unfair and extortionate on its face. As a mere admission of liability, the defendant's promise stands upon the same footing with that in Evans v. Verity (Ry. & M. 239), where Littledale, J., non-suited the plaintiff, saying: " The plaintiff here does not prove any consideration on which the defendant became indebted to him, but insists on his right to recover upon an admission of liability made by the defendant on a statement of account between them." To the same effect are Johnson v. Bennett (1 Spears [S. C.] 209), and Cabot v. Haskins (3 Pick. 83). The fundamental rule appearing from these cases is, that no legal liability can be created by any admission of liability which does not, in fact, exist. Gunning v. Royal, 59 Miss. 45; Briscoe v. Kinealy, 8 Mo.App. 76. And an executed consideration can never support a promise, unless it is shown to have followed a precedent request from the promisor. Bulkley v. Langdon, 3 Conn. 76; Carson v. Clark, 2 Ill. 113; Sowerwein v. Jones, 7 Gill. & J. 335; Jones v. Shorter, 1 Ga. 294; Chaffee v. Thomas, 7 Cow. 358. " To exact from the debtor interest on the previous arrears of interest, without a previous special and particular agreement for that purpose, is inadmissible. * * * The agreement on the part of the defendant to pay compound interest, retrospectively, does not alter the case, for the maxim, volenti non fit injuria, does not apply in these cases." Van Benschooten v. Lawson, 6 Johns. Ch. 315. To the same effect are: Connecticut v. Jackson, 1 Johns. Ch. 13; Wilcox v. Howland, 23 Pick. 167; Toll v. Miller, 11 Paige 228; Forman v. Forman, 17 How. Pr. 255; Kennon v. Dickins, Cam. & M. (N. C.) 357; Childers v. Deane, 4 Rand. 406; Kellogg v. Hickok, 1 Wend. 521. All these decisions denounce as void, and not enforceable by law, a promise to pay interest, retrospectively; in other words, to pay back interest, not previously agreed upon.

GEORGE A. CASTLEMAN, and EDWARD WHITE, for the respondent: There was no duress. Nelson v. Betts, 21 Mo.App. 219; Turley v. Edwards, 18 Mo.App. 676; Davis v. Luster, 64 Mo. 43. Interest may be received, and recovered, without express contract. (a ) Upon money advanced for the use of another from the date of advancement. Barrel v. Joy, 17 Mass. 226; 1 Brown's Chancery Cases, 440; Sims v. Welling, 8 Serg. & Rawl. 109; Dilworth v. Sinderling, 1 Binney 495; Weeks v. Hasty, 13 Mass. 218; Gibbs v. Bryant, 2 Metcalf 175; Hastie v. DePeyster, 3 Caines 195; Breckinridge v. Taylor, 5 Dana 114; Goodloe v. Clay, 6 B. Monroe, 238; Leotard v. Graves, 3 Caines 227; Kaimes v. Smith, 12 Johns. 156; Bell v. Glass Co., 3 Com. 419. ( b ) On money had and received for the use of another. Kirkman v. Vanlies, 7 Ala. 229; Lewis v. Bradford, 8 Ala. 632; The People v. Gasherie, 9 Johns. 71; Pease v. Barber, 3 Caines 266; Robinson v. Bland, 2 Burr 1077; Rapelie v. Emory, 1 Dall. Rep. 349; Thomas v. Weed, 14 Johns. 255; Miller v. Bank, 5 Wharton 505; Wood v. Robbins, 11 Mass. 505; Sims v. Willing, 8 Serg. & Rawl. 109; Bedell v. Janny, 4 Gilm. (9 Ill) 202; Selleek v. French, 1 Conn. 32, 35; 1 American Leading Cases [5 Ed.] 610. ( c ) Back interest upon interest, even, may be recovered, when there is no express contract, prior or subsequent, to pay it. Kennon v. Dickens, Camp. & N. (N. C.) 360; Watkinson v. Root, 4 Ohio 373; Pierce v. Rowe, Adams (1 N. H.) 179; Wright v. Eaves, 10 Rich. Eq. (S. C.) 594; Wilcox v. Howland, 23 Pick. 168; Greenleaf v. Kellogg, 2 Mass. 568; Stewart v. Petrie, 55 N.Y. 621. Interest upon interest may be recovered in the absence of an express contract. Such was the personal opinion of Lord Thurlow, in Waring v. Cundiff (1 Ves. Jr. 99). Wilcox v. Howland, 23 Pick. 168; Barrell v. Joy, 16 Mass. 226; Forman v. Forman, 17 How. Pr. 255; Stone v. Bennett, 8 Mo. 41. (d ) And especially when there is an agreement to that end after the original contract. Connecticut v. Jackson, 1 John Ch. 13; Forman v. Forman, 17 How. Pr. 257. (e ) And it is equitable to receive it, even when the policy of the law forbids a recovery for it. Toll v. Hiller, 11 Paige 231. (f ) A case on all fours with this is decided by Chief Justice Shaw. Wilcox v. Howland, 23 Pick. 168.

OPINION

THOMPSON J.

This was an action on a promissory note, given for $1,503.25, on March 20, 1875, payable twelve months after date, with interest at ten per cent. per annum from date, with the provision that, " if the interest thereon be not promptly paid annually, or when due, the same shall, when due, be added to, and become a part of, the principal, and bear interest at the same rate."

The court, on motion of the plaintiff, struck out a part of the answer, which was as follows.

" The defendant states that, for some time prior to the year 1866, and up to the date of the said note, the defendant was rendering professional services, as an attorney at law, in a large number of lawsuits, and other matters, for the plaintiff, and kept a running book account of the same including all credits for collections made by the defendant in the plaintiff's favor, and debits for sundry amounts paid over to him, and for fees charged by the defendant for his said services; that no general settlement of said account was ever made, or attempted, between the parties, until the day of the date of the said promissory note; that among the said credits in the plaintiff's favor was one for the sum of $1,153, on account of a collection bearing date the fifth day of February, 1868, which so remained thereafter as a credit on the defendant's books during all the time of said running account; that, on the same day on which said collection was made, the plaintiff was duly informed thereof by the defendant, and voluntarily permitted the sum collected to remain in the defendant's hands, in consideration of the large amount of fees already due, and of fees thereafter to become due to the defendant, on account of his professional services in cases which were still pending and undetermined. The defendant avers that, although the plaintiff well knew the fact of said collection, on, and at, all times after the day on which it was made, yet the said plaintiff never demanded any payment on account thereof from the defendant, but, at all times, freely consented and desired, until the making of the settlement hereinafter mentioned, that the matter should remain as it then stood; that the defendant was, at all times, ready and willing, and so informed the plaintiff, from time to time, to account for, and settle, the matter of the said collection, yet the plaintiff voluntarily and repeatedly deferred, and postponed, the making of such accounting and settlement, until it should better suit his convenience; that, during all the time of said delays and postponement, there was never any promise, undertaking, or understanding, of any kind whatsoever, to the effect that interest was to be paid, or accounted for, by the defendant, upon the amount of said collection, or any part thereof, nor was such interest, or any possible liability therefor, ever spoken of, by either of the parties, until the time of the said settlement, hereinafter mentioned.

The defendant further states that, on the twentieth day of March 1875, the defendant exhibited to the plaintiff his account of all the debits and credits existing between them, from the year 1866 up to that time; and, after certain modifications of some of the items, it was then and there agreed, by and between the parties, that there remained a balance due, from the defendant to the plaintiff, of $691.70; that, thereupon, the plaintiff claimed and demanded that there be added to said balance of $691.70, in his favor, a sum to be ascertained by computing interest at the rate of ten per cent. per annum, compounded annually, from...