Wetherbee v. Kusterer
| Decision Date | 02 July 1879 |
| Citation | 41 Mich. 359,2 N.W. 45 |
| Court | Michigan Supreme Court |
| Parties | AMOS WETHERBEE v. PHILIP KUSTERER and ADOLPH LEITELL. |
Upon an undertaking guaranteeing the payment of a note and interest and agreeing to pay all costs and expenses paid or incurred in collecting the same, held, that such undertaking did not include pay for trouble in ordinary dunning, or, where no suit had been actually commenced, for drawing a declaration preparatory to suit. While ordinarily, upon a tender, the money should be brought into court, still a party may waive the necessity of so doing; and where the notice setting up the tender stated that the money was deposited in a certain bank, subject to plaintiff's order, held, he should have made his objection to the sufficiency of such tender in the court below. Errors should affirmatively appear upon the record.
Case made from Kent.
Joslin & Kenfield, for plaintiff.
E.J Eggleston, for defendant.
This is a case made after judgment. The action was commenced by declaration, and was tried without a jury, and the court, on special findings, ordered judgment for the defendants.
July 18, 1877, Christopher Kusterer made his promissory note to the plaintiff for $3,000, payable in three years, with interest at ten per cent., payable semi-annually, and at the same time the defendants executed an undertaking on the back of said note in these terms: "For value received, I promise the payment of the entire note at maturity, or at any time thereafter, with interest at ten per cent. per annum payable semi-annually until paid, and agree to pay all costs and expenses paid or incurred in collecting the same."
The payment of interest due in January, 1878, was delayed until the first of February, and some fifty-four cents of interest arose thereon during that interval. Moreover, the plaintiff's agent made several ineffectual calls for the money, and this labor, as the court finds, was worth two dollars. On the eighteenth of July, 1878, there was similar service to collect the half year's interest for that time, which the finding values at fifty cents.
The action was brought to recover the installment of interest due in July, 1878, and the three small items for dunning and unpaid compound interest. We think there is no foundation for these charges for services. The clause in the contract relative to costs and expenses does not apply to the trouble incident to ordinary dunning. It was not intended to make the debtors liable for an amount not regulated by any certain standard. The design must have been to provide for such charges as the law has liquidated and defined. Such charges being definite the debtors could prepare to meet them, and avoid the hazards and perplexities of uncertain obligations. It is not reasonable to suppose the parties meant to involve the contract in such uncertainty as would flow from the contrary construction. The item of fifty-four cents was undoubtedly waived.
When the simple interest was paid in February, 1878, this little sum for compound interest was, it seems, presented for payment. But no attention was paid to it, and the transaction would seem to have been closed by the payment and acceptance of the simple interest alone. It could not have been intended that this amount of a few cents should remain as a disputed claim, and be the subject of legal controversy at some future time more or less remote.
Against so much of the cause...
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