Gilson v. Martin

[476] The opinion of the court was delivered by Wheeler, J. The money deposited with the defendant was in his hands-a pawn or pledge. While he held it as such, he was not chargeable with any intei’est upon it to be paid by himself, for it was not a debt which the plaintiff foreboi’e to him so as to be entitled to payment for the forbearance. . Being a pawnee, he was subject to the liabilities of a pawnee, but not to those of a debtor. In Stoiy Bailm. s. 339, it is laid down that one duty of a pawnee is, to return the pledge and its increments, if any, after the debt or other duty is discharged. Again in s. 343 it is said that “ another duty of the pawnee at the common law is, to x'ender a due account of all the income, profits, and advantages derived by him from the pledge, in all cases where such an account is within the scope of the.bailment. If, for instance, the pawn is a slave, the pi’ofits of his labor are to be accounted for.” And in the same section it is stated that some authorities think the pawnee is liable further for all the pi’ofits he might have received but for his own negligence. And it is added, that this would doubtless be true in the common law in all cases where there is an implied obligation to employ the pledge at a profit. As, if there is a pledge of money, and it is agreed that it shall be let out at interest by the pawnee, and he neglects his duty. If he lets it out and receives profit, the obligation would doubtless be the same. In 2 Parsons Oont. Ill, the rule is stated to be, bx’oadly, that in all cases the pledgee must account for incoxne or profits derived from the pledge. The intei’est received by the defendant was a profit and an income derived dix-ectly fi’om the pledge, and not from any other soui’ce. The obligations of the parties were set forth in the receipt given by the defendant to the plaintiff, as they existed at that time, and it would not be permissible, according to the unquestionable rules of ’evidence, to add to or vai’y those obligations by parol. But the receipt of this interest by the defendant was not provided for in the wx-itten instrument, and was subsequent to it, so that the duty of the defendant in respect to it does not xest upon the pi’ovisions of the instrument, nor anything contemporaneous with it; hence, the proof of the facts creating the duty, does not affect the instrument nor violate these rules. He [477] is not liable for the interest by force of any express obligation, nor of any implied obligation, to pay interest as such. But he is liable for what interest he is found to have actually received, because it is an incident to and increment of the pledge that he is bound to restore to the owner of the pledge as a part of it. Judgment reversed, and judgment on report for plaintiff for the largest sum.