Thorndike v. Wells Memorial Ass'n
| Decision Date | 04 May 1888 |
| Citation | 146 Mass. 619,16 N.E. 747 |
| Parties | THORNDIKE v. WELLS MEMORIAL ASS'N. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Albert D. Bosson, for plaintiff.
Upon the question raised by the statement of facts, the actual time when the value was fixed is rightly treated as irrelevant. It is agreed what the value was. The contract assumes that that value was to be liquidated at the time when payment was to be made. Bigland v. Skelton, 12 East 436, foot page 438. It is unnecessary to go beyond the four corners of the instrument; but the provision is the usual one, and has been construed to mean that the payment for the use of the wall should be made by the owner of the vacant land at the time when he uses the wall. Washb.Easem. (4th Ed.) 613. The case at bar is analogous to that of a purchaser in possession. It has been repeatedly held that, if such a purchaser does not pay at the time agreed upon, he must pay interest. The act of using is an implied agreement to pay interest. 2 Sugd.Vend. c. 18, § 1 pars. 1, 7; Fludyer v. Cocker, 12 Ves. 25; Powell v. Martyr, 8 Ves. 146. Interest is allowed on money demands certain, or capable of being reduced to certainty. 3 Pars.Cont. (7th Ed.) note w, bottom of page 105. In case at bar the amount due was certain, or capable of being reduced to certainty, at the time of use, by the express provision for two appraisers whom the defendant could choose. No demand was necessary. Where the circumstances of the case are such as to make it the duty of a person to pay money, he will be liable for interest, even without a demand. Birch v. Hutchings, 144 Mass. 563, 12 N.E. 192; Foote v. Blanchard, 6 Allen, 221; Dodge v Perkins, 9 Pick. 368-388.
Felix Rackemann, for defendant.
The "market value," in this case, has always been, up to the moment when the facts were agreed by counsel, an unliquidated demand, and just what is to be found on any quantum meruit or quantum valuit. On this unliquidated demand interest runs only from the date of the writ. Palmer v. Stockwell, 9 Gray, 237; Holliday v. Marshall, 7 Johns. 211; Needham v. Wellesley, 139 Mass. 372, 376. The fact that the agreement is to pay "when used" does not import into the agreement a stipulation that interest shall run from that date; the amount being originally unliquidated, and remaining so at the time fixed for payment. Bank v. Insurance Co., 4 Metc. 1. In the case at bar there is no ground for claiming any fault on our part, and no analogy to cases where interest is allowed as part of the damages; as, for example, for neglect of agent in notifying principal of a collection, as in Dodge v. Perkins, 9 Pick. 368, or for deliberately causing delay by contesting the claim, as in Frazer v. Carpet Co., 141 Mass. 126, 4 N.E. 620. In cases where interest is allowed as damages, it rests within the discretion of the jury whether, on all the facts, they should allow interest or not. Here, if any such claim might have been made, it rested in the discretion of the tribunal awarding the damages, and that discretion has been exercised by the single judge against the allowance of interest, and is conclusive. The special demand, even if found as a fact, does not help the plaintiff's case. It is a demand for an unliquidated uncertain sum and does not avail. Palmer v. Stockwell, 9 Gray, 237; Brewer v. Tyringham, 12 Pick. 547. It will be urged for the plaintiff that interest should be allowed by way of payment for use and occupation. To this it is only necessary to say that there can be no implied agreement where there is an express one. Smith v. Stewart, 6 Johns. 46. The tender made by defendant before suit brought was larger than the amount due, and the finding of the court below was clearly right.
OPINION
The sum which the defendant...
To continue reading
Request your trial