Roberts v. Morsell

Eccrestón, J., delivered the opinion of this court. The present controversy is in regard to the proper mode of calculating interest under the contract between the parties. The appellants contend, that interest should be paid, from ihe 1st of January 1847, upon each instalment, when the principal thereof became due, excepting, of course, the first, which was tobe paid without interest on the 1st of January 1847, but conceding that it would bear interest also from that day, if not then paid. The appellee insists, that upon whatever should be the amount of purchase money unpaid on the 1st of January 1847, interest was to commence from that day, and as each instalment became due lie had a right to demand the principal of the instalment and ail the interest which had not been previously paid, including not only interest on the instalments then due and not paid, but also interest on those not due. In other words, that when each instalment of principal fell due he w^as entitled to all the interest, from the 1st of January 1847, upon the whole unpaid principal of the purchase money, whether actually doe or not, except such part of the interest as might have been previously paid. And that all payments made, after the 1st January 1847, were first to be applied in discharge of interest upon the whole principal not already paid, and then in payment of principal. This he considers the correct interpretation of the contract, which, after speaking of the payment of S3000, in cash, as part of the purchase money, has provided that the residue thereof shall be paid in six equal annual instalments, “with interest on the whole amount unpaid from the first day of January 1.847; that is to say, payable one equal sixth part on the 1st of January-1847, without interest; one other sixth part on the 1st of January 1848, with interest from the said 1st day of January 1.847, as aforesaid; one other sixth part on the 1st of January 1849, [36] with interest as aforesaid; one other sixth part on the 1st January 1850, with interest as aforesaid; one other sixth part on the 1st January 1851, with interest as aforesaid, and the other sixth part on the 1st of January 1852, with interest thereon as aforesaid.” The appellee says, if his view is not adopted proper effect will not be given to the words, “with interest on the whole amount unpaid from the first of January 1847,” when considered, (as they should be,) in connection with the words, “with interest from the said first day of January 1847, as aforesaid,” made use of in regard to the instalment of January 1848; and the words, “with interest as aforesaid,” used in reference to the instalments of 1849 and 1850. It will be difficult to make the different parts of the contract harmonize with each other under the appellee’s theory. In regard to the instalment of 1851, instead of saying “with interest as aforesaid,” we find the expression “with interest thereon as aforesaid.” In this connection, “thereon” must mean upon the “one other sixth part,” immediately preceding. If so, “as aforesaid’ ’ cannot relate to the whole amount unpaid, and, therefore, if those two words have any meaning they must have reference to the 1st of January 1847, when the interest was made to commence. They surely cannot be construed as relating to “with interest on the whole amount' unpaid,” because they follow immediately after the provision for the payment of “one other sixth part on the 1st of January 1851, with interest thereon. ’ ’ Afterwards the contract further provides, “and the other sixth part on the 1st day of January 1852, with interest thereon as aforesaid.” Supposing the language used in reference to the instalment of 1851 provides, that interest thereon shall be paid from the 1st of January 1847, as we think it does, this presents a very strong objection to the appellee’s view of the contract. It cannot be true that at the payment of the instalments of 1848, 1849 and 1850, the principal of each as it fell due should be paid, not only with interest on the same, but also with interest on all the unpaid principal, due or not due, although the contract demands that the instalment of 1851 should be paid with interest thereon from the 1st of January 1847. [37] As a general rule, interest is not payable until the principal on which it is to be paid is actually due. A bond given for $1000, to be paid six years after, with interest from the date of the bond, will not entitle the obligee to claim any portion, of the interest until the six years have expired. If, therefore, a creditor wishes to have his interest before the principal becomes due, the contract should not only provide when the interest is to begin, but also the time or times when it shall be paid before the principal. The contract before us, in relation to interest, begins thus, “with interest on the whole amount unpaid from the first of January 1847.” This shows, very explicitly, when interest is to commence, and upon what, but it gives no intimation as to when it is to be paid. And the appellants’ interpretation does not conflict with any part of this gen eral provision. They agree that interest must be paid on the whole amount of unpaid purchase money, from the 1st of January 1847. But they deny that interest on the whole amount unpaid should be paid at each instalment. An important objection to the appellee’s theory has already been stated, and we have said the appellants’ interpretation of the contract is not at all inconsistent with the first, or general provision in regard to interest, directing upon what it should be charged, and when it should commence. Whilst this is true, it will also be seen that under the appellants’ theory the provisions relating to the several instalments will be perfectly consistent with the general provision just mentioned, and also with each other, by construing the words “as aforesaid” in each instance as relating to the time interest should commence on each instalment; that is, the 1st of January 1847. And this we think may be done with propriety; because it will harmonize the different parts of the instrument, without striking out or disregarding any portion of its language, and without interpolating any; and because, giving those words such construction will be taking far less license with them in regard to any or to either of the instalments, than will be absolutely necessary to take in regard to the words, “with interest thereon as aforesaid,” used in reference to the instalment of 1851, if [38] the appellee’s construction .of the contract can be sustained. His theory renders it necessary that the word “thereon” should be expunged and entirely disregarded; or else if retained ¿nd permitted to have its legitimate meaning, the contract in this place would require one-sixth part of the principal to be paid, with interest thereon from the 1st of January 1847, although by the previous provisions the purchasers were bound to pay interest from the 1st of January 1847, on this same one-sixth part, as part of “the whole amount unpaid,” at one, if indeed not more than one, of the instalments falling due prior to January 1851. The appellee claims interest upon principal before it became due. This is in opposition to the general principle of law, which, does not give a right-to demand interest until the principal is payable, unless there is a- contract conferring such right. It is, of course, incumbent upon a party setting up a claim of the kind to show that his agreement sustains it. To say the, least of the present very cloudy contract, it is doubtful whether the language is sufficient to entitle the claimant to interest according to his views. The onus of establishing the right being on him, the court cannot say that the doubtful instrument before them shows the appellee has the right to demand interest according to his interpretation of the contract. The only question argued before us relates to the proper mode of calculating interest; all other matters originally in controversy having, as we are informed, been satisfactorily arranged between the parties. We have therefore confined ourselves to the subject presented in the argument, and the views expressed in this opinion will show that we think the appellants’ interpretation of the contract is correct; which being inconsistent with the construction of it by the judge below, his decision must be reversed, with costs to the appellants, and a decree' will be given accordingly. Decree reversed, until costs to appellants.