Abbott v. Wilmot

[439] The opinion of the court was delivered by Poland, J. 1. From the facts reported by the auditor it would seem sufficiently certain, that the plaintiff, in 1846, had a valid and legal claim against the defendant for the third item in his account, “ for going to West Fairlee after sheep,” amounting to the sum of fifty cents; and it does not appear, that this charge was ever paid, or adjusted, except as reported by the auditor, as follows; — In the autumn of 1846 the defendant purchased a heifer of the plaintiff and drove to market and there sold her for fifty cents less than the price he paid the plaintiff. On his return he made some complaint to the plaintiff on the subject, and the plaintiff then told him, that he would “give him in” the going after the sheep. It does not appear, from any thing reported by the auditor, that the plaintiff was under any legal obligation to the defendant to make up any loss he sustained on the sale of the heifer, nor can we infer, that he was under any such moral obligation to do so, as would have furnished any consideration for an express promise to remunerate him for such loss. But whether he was under any obligation, or not, either legal, or moral, he certainly had the right to do it, if he chose to do so voluntarily; and if he considered himself under a moral obligation to make it up to him, and did so, the law would not permit him to afterwards retract and recover back such payment. The auditor does not find, in terms, that the defendant consented to accept the plaintiff’s offer, to receive said fifty cents in satisfaction for his claim for loss on the heifer; but he reports, that no charge was made and no claim preferred afterwards, upon either side, until this controversy arose about the price of the oxen, and the charges were first made, upon both sides, at the trial before the auditor. From these facts we think, the auditor was well warranted in finding, that there had been an accord, of this item between the parties, and properly disallowed the same. 2. As to the charges for interest; — It seems, in both instances, the defendant had purchased the plaintiff’s cattle to drive to market, and paid a part of the price before going to market, and was to pay the balance after his return from Boston. In one instance he paid the money in twenty one days, and in the other in twenty eight days, after his return. The defendant, we think, was entitled to a reasonable time after his return, in which to pay the money; he [440] was not bound to go at all hazards, the day of his return, to the plaintiff’s residence, which was several miles distant, to make payment of the money; and from any thing that is reported we cannot say, that the money was not paid in a reasonable time after his return. In one instance, it seems very clear, the defendant was in no fault for not making payment at an earlier day. Here was no contract whatever to pay interest; and except where there is an express contract for interest, it is only recoverable as damages for the detention of the money, which the party ought to pay. In a case where a party is entitled to no interest by any contract, and afterwards receives his money without making any claim for interest, it is very difficult to see upon what ground he can after-wards make a claim for it. But even if he might have insisted upon having interest, it is manifest, that, his receiving his money without claiming it, and his subsequent silence for years, without making any charge or claim for it, furnishes ample evidence of a waiver of any claim, he might ever have had for it. These charges, it seems, were first made and presented, after the evidence was closed on the main controversy between the parties. Charges made and presented under such circumstances ought not to be encouraged; and we think the auditor did “ eminent justice ” in disallowing them j and the judgment of the county court in accepting his report and rendering judgment for the defendant is affirmed.