Holmes v. Rankin

By the Court, Welles, J. The general rule has been uniformly understood to be, that interest is not recoverable on unliquidated damages, or for an uncertain demand. (Anon., 1 Johns. R. 315. Loitard v. Graves, 3 Cai. R. 226, per Spencer, J. 234. Newell v. Griswold, 6 Johns. R. 45. Reid v. Rensselaer Glass Factory, 3 Cowen, 393; S. C. in Error, 5 Id. 587. Wood v. Hikock, 2 Wend. 501. Still v. Hall, 20 Id. 52. Esterly v. Cole, 1 Barb S. C. R. 235. McKnight v. Dunlop, 4 Id. 36.) In the case of Reid v. The Rensselaer Glass Factory, (supra,) which was elaborately argued by counsel, and very fully discussed and considered by the court, it was held that interest was not recoverable upon a claim for a salary in favor of the plaintiff’s intestate as agent of the defendants, on proof that such salary was worth $1,250 per annum, no agreement having been made as to the amount of the salary, or when the same was payable. One modification of the rule stated is, that where a debtor is in default for not delivering property at a time specified, in pursuance of his contract, the price or value whereof is not agreed upon, but has to be ascertained by evidence, interest is recoverable upon the value thus ascertained: as where rent was payable annually in wheat, fowls and services, the value of which was unliquidated by the contract, it was held in a late case in the court of appeals of this state, that interest was recoverable as matter of law, upon the value of the property agreed to be delivered and the services agreed to be performed as established by the evidence, from the time the rent fell due. (Van Rensselaer v. Jewett, 2 Comst. 135.) The same was held in Lush v. Druse, (4 Wend. 313,) and in Van Rensselaer v. Jones, (2 Barb. S. C. R. 643.) The claim of the defendant in this case for boarding the testatrix and her daughter was in every sense uncertain and unliquidated. There was no price or time of payment stipulated between the parties, or proof of any usage, and there is nothing stated in the case from which the [457] court can infer any agreement or understanding as to the price or time of payment. The boarding commenced on the 16th of June, 1847, and continued without interruption, and without any request of payment, or any thing being said on the subject, until the death of the testatrix, on the 10th of June, 1851. [Monroe General Term, March 6, 1854. Welles, Johnson and T. B. Strong, Justices.] I confess I find it impossible upon principle to distinguish the case from that of Reid v. The Rensselaer Glass Factory, above referred to. The principles settled in that case have received the sanction of the late court of errors, and have never been since questioned in the courts of this State. The cases of Lush v. Druse, Van Rensselaer v. Jones, and Van Rensselaer v. Jewett, before cited, proceed upon the ground of an express agreement to pay or deliver by a specified time, and although the pecuniary value of the property to be delivered did not appear in the contract, yet that could be determined by evidence, and when so ascertained, the right to interest thereon would follow. There was an agreement as to what was to be paid, and when, and although there was no value agreed upon, yet the value was capable of being reduced to certainty by evidence.- The duty of the party in such case was to pay or deliver as he had agreed. There was no uncertainty in the contract, which contemplated performance by the parties, according to its provisions. The party whose duty it was to pay having made default, the measure of indemnity to the other party was the payment of the value of the property withheld, together with interest. If we say that in this case the law will imply an agreement to pay what the board was reasonably worth, what shall be said about the time of payment ? Was payment to be made weekly, monthly, quarterly, or yearly 1 In the absence of all evidence on the subject, the referee was not authorized to intend either. Besides, the same argument would have been equally applicable in favor of the claim for interest on the wages in the case of Reid v. The Glass Factory. I think it ought to be regarded as settled upon authority, that in a case like the present, interest is not recoverable. The judgment of the special term should be affirmed.