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J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) online

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ville & N. R. Co. V. Wallace, 90
Tenn. 53, 14 L.R.A. 548; Burrows
V. Lownsdale, 133 Fed. 250, 66 C.
C. A. 650; Big Sandy R. Co. v. Rice,
147 Ky. 645; Board of Com'rs v.
Flanagan, 21 Colo. App. 467; Amer-
ican-H. E. & C. Co. v. Butler, 17 Cal.
App. 764; General Supply & C. Co.
V. Goelet, 149 App. Div. (N. Y.) 80;
Meyer v. Buckley, 22 Cal. App. 96:
Trego V. Rubovits, 178 111. App. 127;
Kitchin v. Oregon N. Co., 65 Ore. 20 ;
Brooklyn Heights R. Co. v. Brook-
lyn City R. Co., 151 App. Div. (N.
Y.) 465; Ferrea v. Chabot, 121 Cal.
233; Coburn v. Goodall, 72 Cal. 498,
1 Am. St. 75; Easterbrook v. Farqu-
harson, 310 Cal. 311; Cox v. .Mc-
Laughlin, 76 Cal. 67, 9 Am. St. I(i4;
Maeomber v. Bigelow, 123 Cal. 532,
126 Cal. 9; De.\ter v, Collins, 21



Colo. 455; Imperial 11. Co. v. Claf-
lin Co., 175 111. 119; Wittenberg v.
Mollyneaux, 59 Neb. 203, citing tlie
text; Button v. Kiniictz, 88 Ilun,
35; Matter of Ilartman, 13 X. Y.
Misc. 486; Meyers' Est.. 179 Pa.
157; Kuhn v. INIcKay, 7 Wyo. 42,
65, quoting the text; Pacific P. Tel.
Cable Co. v. Fleischner, 14 ('. C. A.
166, 66 Fed. 899; Couburn v. Mus-
kegon B. Co., 72 Mich. 134: .Mans-
field V. New York, etc \l. Co., Ill
N. Y. 331, 4 L.R.A. 566.

53 New York, etc. R. Co. v. Iv()|)(>r,
176 Tnd. 497, 36 L.R.A. (X.S.) 952.

Regardless of the character of tlic
action interest is recoverable in all
cases for tlu' use or (h-sl nictiun of
property when the aiimuiit wliicli is
due the plaintiff may be known or
ascertained approximately ]i\ refer-
ence to niiirket valiK's. Missoiiii,
etc. R. Co. V. Clark, (id Xeli. KKi,
citing tile text ami De I.avallette v.
Wendt, 75 \. Y. 579; Sullivan v.
McMillan, .•i7 Fla. i:!4. r,:i Am. St.
2:!9: Gulf, eti-. I!. Co. v. Dunniaii,
6 Tex. ( iv. .\pp. 101; .Mobile, ele.
R. Co. V. -In rev. 111 r. S. 584, 2S
L. ed. 527.

In Times I'ul
Tex. Civ. App. -
interest was allowed on damages re-
sulting from a breach of contract to
supply newspapers to a newsdealer.

In Wentworth v. Manhattan Mar-
ket Co., 218 Mass. 9], iiterest was
allowed on danuiges for lessee's fail-
ure to erect a building in accord-
ance with Ilia contract with the les-
sor.



Co. v. Rood, —
-, 163 S. W. 1037,



1094



SUTHEELAND ON DAMAGES.



[§ 347



imliquidafed if one party alone cannot make it certain,^* — when
it cannot be made certain by mere calculation ; but the allowance
of interest as damages is not dependent on this rigid test.^^ The
test as to the right to recover interest for the breach of contracts
for the sale of property is the existence of an established market
value of it, or means accessible to the party sought to be charged
of ascertaining by computation or otherwise the amount to which
the plaintiff is entitled,^® though the vendee may assert a coun-
terclaim because of defects in the quality of the goods.^' It is
not sufficient to bring a case within this rule that expert testi-
mony shows the value of the property ; market value must be
shown by sales, the current price.^^ The words "debt or sum
certain payable at a certain time," in the English statute govern-
ing the right to interest require that the certainty of both the



54 Anthony v. Moore, 135 App.
Div. (N. Y.) 203; Coatcs v. Nyack,
127 App. Div. (N. Y.) 153; Brook-
lyn Heights R. Co. v. Brooklyn City
R. Co., 151 App. Div. (N. Y.) 465;
Thacher v. New York, etc., R. Co.,
153 App. Div. (N. Y.) 186; Clark
V. Dutton, 69 111. 521; Roberts v.
Prior, 20 Ga. 561.

Where a contract to convey land
is so indefinite in its description as
to be incapable of specific perform-
ance, and its money value is un-
known, and the vendor cannot know
even approximately how much he is
liable for, the rule permitting inter-
est upon damages ascertainable by
computation or from well estab-
lished market prices cannot be ap-
plied. Harvey v. Hamilton, 54 111.
App. 507.

55 Sanderson v. Read, 75 111. App.
190, quoting the text.

56 Courteney v. Standard B. Co.,
16 Cal. App. 600; New York B. N.
Co. V. Kidder P. Mfg. Co., 192 Mass.
391 ; Reynolds v. Burr, 104 App. Div.
(N. Y.) 31; Parks v. Elmore, 59
Wash. 584; Gray v. Central R. Co.,
157 N. Y. 483; White v. Miller, 78
N. Y. 393, 34 Am. Rep. 544; Mans-



field V. New York, etc. R. Co., 114
N. Y. 331, 4 L.R.A. 566; Clegg v.
New York N. Union, 72 Hun 395;
Martyn v. Western Pac. R. Co., 21
Cal. App. 589.

In Parkins v. Missouri Pac. R.
Co., 76 Neb. 242, the court said it
was no answer to the claim for in-
terest against a vendee who refused
to accept property that the amount
required to compensate the vendor
was unascertained and could only be
ascertained by verdict, and, conse-
(juently he was unable to tender the
amount, because that uncertainty
was one of the consequences of the
defendant's act, and if the loss must
fall upon one or the other because
of such uncertainty, it is just that
it should fall on the wrongdoer.
Wittinberg v. Mollyneaux, 59 Neb.
203, was overruled.

57 Dickinson F. & P. B. Co. v.
Crowe, 63 Wash. 550. This is re-
garded as doubtful, and is contrary
to Excelsior T. C. Co. v. Harde, 181
N. Y. 11, 106 Am. St. 493.

58 City of Rawlins v. Murphy, 19
Wyo. 238; Sloan v. Baird, 162 N.
Y. 327.



§ 347] INTEREST. 1095

sum due and the time it is payable shall be ascertainable from
the contract. If all the elements of certainty so appear and
nothing more is required than an arithmetical computation to
ascertain the exact sum or the exact time for payment, interest
may be recovered.^^ The code of California awards interest to
every person who is entitled to recover damages, certain or
capable of being made certain by computation, if the right of
recovery exists upon a particular day. Interest is recoverable
under this provision where a contract has been fully performed
by the plaintiff and its fruits accepted without objection by the
defendant, who was in default as to payment, the only question
open being as tO' the value of such performance.^" It is not
recoverable where the value of the services rendered can only
be established by evidence in court or by an accord between
the parties, and is not susceptible of ascertainment either by
computation or by reference to known standards of vnluc,^^
nor where the price of the goods sold fluctuated duriui:- tlie
period in question.®^

In a leading IvTew York case suit was brought foi- tln^ \:iluo of
rent long in arrear, payable in services and specific articles:
"eighteen bushels of wheat, four fat hens, and one day's service
with carriage and horses," were payable yearly as rent. It was
an unliquidated demand, not payable in money, nor was a
specified sum to be paid in any other way. But the time of
payment was certain, and therefore the claim of interest clearly
raised the question whether the uncertainty of amount nhuie

59 London, etc. R. Co. v. South- 61 Cox v. McLauglilin, 7G Cn\. tin,

eastern R. Co., [1892] 1 Ch. 120, ,3 a,„ ^^^ 1^4. Swinnerton v. Ar-

[1893] App. Cas. 429; Merchant S. ^^^^^^^ ^ ^^ ^^ ^.„^ ^^^ ^,,, ^ - .

Co. V. Armitage, L. R. 9 Q. B. 99_; s^,^.„,^^„. ^_ (),.,riehs. Ifi2 Cal. 318;



Farnham v. California S. D. «S: T,



McCullough V. Clemow, 2G Ont. 467.

A sum is payable at a certain

time if the promise is that it shall Co., 8 Cal. App. 2(ii;; CliaMilMTs v.

be paid within six months after the Boyd, 11(1 App. Div. (X. Y.) 208;

death of the promisor. Fooks v. Merchants' Colleetion Agency v.

Horner, [1890] 2 Ch. 188. ,3 ^,^, ,,,; ,,.;,.„^

60 Mix V. Miller, 57 Cal. 356; Mc-
r, , , r- f J on ri 1 rro V. Blautli, 163 Cal. 782.

Fadden v. Crawford, 39 Cal. 662.

The latter case was ruled before the 62 Coghlan v. Quartararo, If. Cal.

code was enacted. -^PP- ('6 -



1096 SUTHERLAND ON DAMAGES. [§ 347

relieved the lessee from liability for interest on the value, he hav-
ing made default in paying in the particular mode provided
for. Bronson, J., delivered the opinion in favor of such lia-
bility. He said : "It was decided in 1806, without assigning any
reason for the judgment, that interest was not recoverable in
such a case.®^ But since that time the supreme court has de-
liberately held, on three several occasions, including the present
one, that interest is recoverable in such a case.^* The principle
to be extracted from these decisions may be stated as follows:
Whenever a debtor is in default for not paying money, deliv-
ering property, or rendering services in pursuance of his con-
tract, justice requires that he should indemnify the creditor
for the wrong which he has done him; and a just indemnity,
though it may sometimes be more, can never be less, than the
specified amount of money, or the value of the property or
services at the time they should have been paid or rendered,
with interest from the time of the default until the obligation
is discharged. And if the creditor is obliged to resort to the
courts for redress, he ought in all cases to recover interest, in
addition to the debt, by way of damages. It is true that on
an agreement like the one under consideration the amount of
the debt can only be ascertained by an inquiry concerning
the value of the property and services. But the value can be
ascertained; and when that has been done the creditor, as a
question of principle, is just as plainly entitled to interest after
the default as he would be if the like sum had been payable in
money. The English courts do not allow interest in such cases ;
and I feel some difliculty in saying that it can be allowed here
without the aid of an act of the legislature to authorize it. But
the courts in this and other states have for many years been
tending to the conclusion, which we have finally reached, that
a man who breaks his contract to pay a debt, whether the pay-
ment was to be made in money or in anything else, shall
indemnify the creditor so far as that can be done by adding in-
terest to the amount of damage which was sustained on the day

63 Van Rensselaer v. Plainer, 1 64 Lush v. Druse, 4 Wend. 313;

Van Rensselaer v. Jones, 2 Barb.
Johns. 276. ' 643.



§ 347]



INTEREST.



1097



of the breach. The rule is just in itself; and as it is now nearlv
nineteen years since the point was decided in favor of tlie
creditor and eight out of the nine judges of the supreme court
have, at different times, concurred in that opinion, we think the
question should be regarded as settled." ^^ The doctrine of this
case has been adhered to in that state and often re-affirmed.®^
In many other states there is a tendency at least in favor of
the allowance of interest as damages where there is default in
payment. ^'^ Justice Winslow of the Wisconsin bench has thus
expressed the trend of judicial sentiment: It is quite well es-
tablished by the preponderance of authority that there are cases
for breach of contract, and cases sounding in tort, where the
damages are whoUy unliquidated, but where they may be fixed
by known and reasonably certain market values or other definite
standards, where interest is to be allowed from the time of the



65 Van Rensselaer v. Jewett, 2 N.
Y. 3 35 (1849). In McMahon v.
New York & E. R. Co., 20 id. 4G3,
it is said of this case that the court
went as far as it was reasonable to
go. See Mansfield v. New York, etc.
R. Co., 114 id. 33], 4 L.R.A. 566.

If the contract price for work is
subject to a reduction for damages
which must be ascertained by a
trial, interest may not be recovered.
Excelsior T. C. Co. v. Harde, 181
N. Y. 11, 106 Am. St. 493.

A demand payable in building ma-
terials does not bear interest before
judgment. Poppleton v. Jones, 42
Ore. 24.

66 Kervin v. Utter, 120 App. Div.
(N. Y.) 610; Degnon-McL. C. Co.
V. City Trust, etc. Co., 99 App.
Div. (N. Y.) 195; Adams v. Fort
Plain Bank, 36 N. Y. 255; Mc-
Cormick v. Pennsylvania Cent. R.
Co., 49 id. 303; Mygatt v. Wilcox,
45 id. 406, 6 Am. Rep. 112; Dana
V. Fiedler, 12 N. Y. 40, 62 Am. Dec.
130; McMahon v. New York & E.
R. Co., 20 F. Y. 463; McCollum
V. Seward, 62 id. 316; Pipperly v.
Stewart, 50 Barb. 52; Church v.



Kidd, 6 Hun 475; Mercer v. Vose,
67 N. Y. 56; Wilson v. Troy, 135
N. Y. 104, 18 L.R.A. 449 ; Mansfield
V. New York, etc. R. Co., 114 N. Y.
331, 4 L.R.A. 566; Gray v. Central,
etc. R. Co., 157 N. Y. 483; Sweeny
V. New York, 173 N. Y. 414.

67 Sullivan v. McMillan, 37 Fla.
]34, 143, 53 Am. St. 39 (it is said
in this case that the distinction is
practically obliterated between liq-
uidated and unliquidated de-
mands) ; McCormack v. Lynch, 69
Mo. App. 524; Watkins v. Junker,

90 Tex. 584; Kuhn v. McKay, 7
Wyo. 42, 65; Murray v. Doud, 63
111. App. 247; Vierling v. Iroquois
F. Co., 08 id. 643; Spaulding v.
Mason, 161 U. S. 375, 396, 40 L. ed.
738, 746; Laycock v. Parker, 103
Wis. 161 (quoted from, § 321);
New York, etc. R. Co. v. Ansonia
L. & W. P. Co., 72 Conn. 703, stated
in § 355; Bartee v. Andrews, 12 Ga.
407 ; Vaughan v. Howe, 20 Wis. 523,

91 Am. Dec. 436; Gammon v.
Abrams, 53 Wis. 323 ; Ryan v. Bald-
rick, 3 McCord 294; Driggers v.
Bell, 94 111. 223; Swanson v. An-
drus, 83 Minn. 505, 510.



1098 SUTHEKLAND ON DAMAGES. [§ o4:7

breach or the commission of the injury. In such cases inter-
est is not allowed, as such, but simply as compensation for the
delay, and in order that the plaintiff may be fully remunerated
for his injury. In such cases interest is regarded, in the absence
of special circumstances showing greater loss, as measuring the
proper compensation for the delay which the plaintiff has suf-
fered in waiting for the payment of his damages ; the principle
being that the plaintiff will not be fully compensated unless he
receive, not only the value of the thing lost, but receive it, as
nearly as may be, of the date of his loss.^^ In Georgia the allow-
ance of interest is discretionary with the jury according to the
facts and circumstances.^^

§ 348. Same subject. The question is the same, of course,
so far as the uncertainty of amount affects it, when the demand
is for services rendered, or for property sold and delivered.
Such a case was decided in New York in 1867. The referee
found that the defendant was indebted for professional services
to the plaintiff's assignor, on a certain date, in a specified sum.
But the court remark: "It is not our province and we are not
called upon to examine the evidence to ascertain how this in-
debtedness arose. It is found as a fact that such indebtedness
specifically existed in a certain ascertained amount, and con-
sequently it became presently due and payable, and an action
could then have been maintained for its recovery, and it fol-
lows that interest was recoverable on the amount from the

68 Darlington v. J. L. Gates Land jury in many cases, and that no

Co., 151 Wis. 461 ; Bagnall v. City good reason exists for drawing an

of Milwaukee, 156 Wis. 642; J. I. arbitrary distinction between liqui-

Case Plow Works v. Niles & S. Co., dated and unliquidated damages.

107 Wis. 9 ; Richards v. Citizens' The determination of whether or not

N. G. Co., 130 Pa. 37; McCall Co. interest is to be recognized as a

V. Icks, 107 Wis. 232; GrifRng v. proper element of damage is one to

Winfield, 53 Fla. 589 ; Gross v. bo made in view of the demands of

Heckert, 120 Wis. 304. See § 1026. justice rather than through the ap-

Courts are coming more and more plication of any arbitrary rule.
to recognize that a rule forbidding Bernhard v. Rochester German Ins.
an allowance for interest upon un- Co., 79 Conn. 388.
liquidated damages is one well cal- 69 Tifton, etc. R. Co. v. Butler, 4
culated to defeat the purpose of Ga. App. 191; Snowden v. Water-
making fair compensation for an in- man, 110 Ga. 99.



§ 348] INTEREST. 1099

day the same became due." '''" Damages by way of interest may
be allowed the plaintiff in an action on a bnildinji: contract for
the detention of money due him, notwithstanding the amount
sued for is liable to be reduced because of his deviation from the
plans for the building.'^ Where the rule of damages is the dif-
ference between the contract price and the market value, as in
ease of failure to deliver goods according to contract, interest is
allowed on that measure from the date of the breach."' Johnson,
J., insisted on the duty to pay interest in this forcible language:
''The party is entitled on the day of performance to the properly
agreed to be delivered ; if it is not delivered, the law gives as
the measure of compensation then due the difference between
the contract and market prices. If he is not also entitled to
interest from that time, as a matter of law, this contradictory
result follows : that while an indemnity is professedly given, the
law adopts such a mode of ascertaining its amount that the
longer a party is delayed in obtaining it the greater shall its
inadequacy become. It is, however, conceded to be law that
in these cases the jury may give interest by way of damages
in their discretion. IsTow, in all cases, unless this be an ex-
ception, the measure of damages in an action upon a contract
relating to money or property is a question of law, and does
not at all rest in the discretion of the jury. If the giving or
refusing interest rests in discretion, the law, to be consistent,
should furnish some legitimate means of influencing its exer-
cise by evidence; as by showing that the party in fault has

70 Fairchild v. Bay Point & C R. Iiility by computation or othorwiso.

Co., 22 Cal. App. 328; Bradley v. Poople v. Willcox (App. Div.) 138

McDonald, 157 App. Div. (N. Y.) x. Y. Supp. 105;-), citing local cases.

,'372; Adams v. Fort Plain Bank, 3(J 71 Hcaly v. Fallon, f>!» Conn. 228;

N. Y. 2;-);-); Watkins v. Junker, 90 j^j^^.cock "v. Parker,' 103 Wis. IC.l.

Tex. 584; Mercer v. Vose, G7 N. Y. g^; ^^^^^^.^^ ^. p^.^,^^^^, ^. ^ ^ ^^

56; Yates v. Shepardson, 3!) Wis. ^^ ^^ ^^^ ^^ L.R.A.fN.S.)
173; Brass v. Springville, 100 App.
Div. (N. Y.) 197. Contra, Swin-
nerton v. Argonaut L. & D. Co.,

IP? Cal 375 ^""'^ ^'- ^'^*"<'''' ^- ^'- ^'- ■*^^- '■-

The test of liability is the exist- Am. D.-c i:]n; Ph.ml. v. Campbell,

ence of means by which the debtor P-^!> HI- H" • M'Call Co. v. Icks, 107

mav ascertain the extent of his lia- ^^'i9. 232.



88.
72Driggers v. Bell, !t4 111. 223;



1100 SUTHERLAND ON DAMAGES. [§ 348

failed to perform either wilfully or by mere accident, and with-
out any moral misconduct. All such considerations are con-
stantly excluded from a jury; and they are properly told that
in such an action their duty is to inquire whether a breach of
the contract has happened, not what motives induced the breach.
That by law a party is to have the difference between the con-
tract price and the market price, in order that he may be indem-
nified, and because the rule affords the measure of his injury
when it occurred ; that he may not, as a matter of law, recover
interest which is necessary to a complete indemnity ; that never-
theless the jury may, in their discretion, give him a complete
indemnity, by including the amount of interest in their estimate
of his damages ; but that he may not give any evidence to in-
fluence their discretion, presents a series of propositions, some of
which cannot be law. The case of Van Rensselaer v. Jewett '^
establishes a principle broad enough to include this case, and has
freed the law from this as well as other inconsistencies in
which it was supposed to have become involved. The right to
interest in actions upon contract depends not upon discretion,
but upon legal right ; and in actions like the present interest is
as much a part of the indemnity to which the party is entitled
as the difference between the market value and the contract

JJ 74

price.

Nor is it an objection to the allowance of interest on the
contract price of property sold, not paid when due, that there
is a dispute between the parties as to the quantity and quality.'^
In actions between vendor and purchaser for failure to fulfill
the contract, or for breach of warranty — where the measure
of recovery is the difference between market price and con-
tract price, or the market price of a warranted property and its
actual value in a state or quality inferior to that which was
warranted, — interest is to be added to the damages from the

73 2 N. Y. 141. 91 Am. Dec. 43G. See Gammon v.

74 In Dana v. Fiedler, 12 N. Y. 40, Abrams, 53 Wis. 323. Interest is
50, 62 Am. Dec. 130. Watkins v. not recoverable on an account for
Junker, 90 Tex. 584, is to the same services if the employment is dis-
effect. puted. Griggs v. Ganford, 50 111.

75 Vaughn v. Howe, 20 Wis. 523, App. 172.



§ 348]



INTEREST.



1101



time of the breach.'^ So where the action is on warranty of
title.'' Money is due immediately, and carries interest from
the date of the transaction, where there is a purchase of goods
or other things for cash on delivery, or without any other time
being agreed on.'* If a sale is made on a definite term of ci-edit,
agreed on or implied from custom, interest is chargeable from
the expiration of that term of credit.'^ Where a party's right
to compensation under a contract is doubtful, is contested uixm
reasonable grounds and a suit is required to determine tlio
amount, interest will not be allowed for any time preceding such
determination.*" A denial in good faith of the right to recover



76 J. I. Case Plow Works v. Niles
& S. Co., 107 Wis. 9, citing the text;
Brown v. Doyle, 69 Minn. 543; Bu-
ford v'. Gould, 35 Ala. 265; Clark
V. Dales, 20 Barb. 42; Hamilton v.
Ganyard, 34 id. 204; Fishell v. Wi-
nans, 38 id. 228; Dana v. Fiedler,
32 N. Y. 40, 62 Am. Dec. 130; Bad-
gett V. Broughton, 1 Ga. 591; En-
ders V. Board Public Works, 1 Gratt.
372; Blackwood v. Leman, Harp.
143; Bicknall v. Waterman, 5 R.
I. 43; Merryman v, Criddle, 4 Munf.
542; McKay v. Lane, 5 Fla. 268;
Wolfe V. Sharpe, 10 Rich. 60; Mar-
shall V. Wood, 16 Ala. 806; Mayor
V. Purcell, 3 Munf. 243; Sohier v.
Williams, 2 Curtis 195. See Curtis
V. Innerarity, 6 How. 146.

After demand interest may be re-
covered for the breach of a contract
to deliver goods, the price and quan-
tity being agreed upon. Thomas v.
Wells, 140 Mass. 517.

77 Rowland v. Shelton, 25 Ala.
217; Goss v. Dysant, 31 Tex. 186;
Crittenden v. Posy, 1 Head 311;
Eggleston v. Macauley, 1 McCord
237. But see Ancrum v. Slone, 2
Spear 594.

78 McAfee v. Dix, 101 App. Div.
(N. Y.) 69; Wyandotte, etc. G.
Co. V. Schliefer, 22 Kan. 468;
Foote V. Blanchard, 6 Allen 221,
83 Am. Dec. 624; Pollock v.



Ehle, 2 E. D. Smith 541; Salter
V. Parkhurst, 2 Daly 240; Clark
V. Dalton, 69 111. 521; Waring v.
Henry, 30 Ala. 721 ; Smith v. Shaf-
fer, 50 Md. 132; Atlantic P. Co.
V. Grafiin, 114 U. S. 492, 29 L. ed.
221. Where tliere is a sale of goods
and the price is not a gross sum tin*
amount is liquidated by the terms
of the invoice received and retained
by the vendee. Ibid. Contra, State
V. Warner, 65 Wis. 271; Marsh v.
Eraser, 37 Wis. 152. Botli these
cases are probably overruled by Lay-
cock V. Parker, 103 Wis. 161, 185.
In harmony with the latter is Farr
V. Semple, 81 Wis. 230.

79Esterly v. Cole, 3 N. Y. 502;
Kennedy v. Barnwell, 7 Rich. 124;
Howard v. Farley, 3 Robert. 308;
National Lancers v. Lovcring, 30 N.
H. 511; Moore v. Patton, 2 Port.
451 ; Raymond v. Isham, 8 Vt. 258 ;
Dickinson v. Gould, 2 Tyler .32;
Leyde v. Martin, 16 Minn. 38; Foote
v. Blanchard, 6 Allen 221, 83 Am.
Dec. 624: VViltburger v. Randolph.
Walk. (Miss.) 20; Wyandotte, etc.
G. Co. V. Scliliefer, 22 Kan. 468.

80 Shipman v. State, 44 Wis. 458:
Tucker v. Grover, 60 id. 240. See
Tyson v. Milwaukee, 50 Wis. 78.
Tlie two cases first cited are affect-
ed by Laycock v. Parker, supra.



1102



SUTHEKLAND ON DAMAGES.



[§ 348



avoids liability for interest prior to judgment though there is
no question concerning the extent of the contingent liability."
Interest has been denied because an excessive claim was made
upon an unliquidated demand.^^ It has been laid down as a
general rule that there cannot be a recovery of interest on the
damage sustained in an action for the breach of contract where
the recovery is measured by the loss of profits,^^ and that in-
terest is not recoverable on profits anterior to their determination
by verdict.®*

§ 349. Interest on accounts. On accounts which were not
due when made nor by the expiration of any term of credit
interest is allowed after demand in pais or by suit.®^ A demand
made by rendering the account informs the debtor what is



81 Sorenson v. Oregon P. Co., 47
Ore. 24; Baker County v. Hunting-



Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) → online text (page 126 of 144)