James H Monroe.

Monroe's digest of standard decisions of the courts of last resort of the United States, Canada, England, Scotland and Ireland : upon questions in law and equity relating to banks, banking, commerce, trade and manufacturing online

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Online LibraryJames H MonroeMonroe's digest of standard decisions of the courts of last resort of the United States, Canada, England, Scotland and Ireland : upon questions in law and equity relating to banks, banking, commerce, trade and manufacturing → online text (page 35 of 80)
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not seaworthy, the policy will not attack. Van Wickle v. Mech & Tr.
Ins. Co., 9? N. Y. 350.

1892. This warranty is a condition precedent, the performance of
which must be alleged and proved to entitle the insured to recover in
an action on the policy. Ibid.

1893. Agreement of life insurance company to pay agent commis-
sions on renewals, on a gross sum in lieu thereof, is terminated by dis-
solution of company. Hepburn v. Montgomery, 97 N. Y. 617.

1894. The law will not imply an unwritten contract which the
parties themselves could not make without writing. Chase v. Second
Ave. E. R. Co., 97 N. Y. 384.

1895. Waiver of breach of condition at issuance of policy of in-
surance continues in favor of all renewals granted of such policy.
Kruger v. Western Fire & Marine Ins. Co., 72 Cal. 91.

1896. Proof that the assignee of a policy of life insurance caused
the death of the assured by felonious means is sufficient to defeat a re-
covery on the policy. New York Mut. Life Ins. Co. v. Armstrong, 11T
U. S. 591.


1897. It was said in Stanberry v. Moore, 56 111. 472, that the prac-
tice of making amendments by erasures and interlineations is a bad
one, and ought not to be tolerated ; that a paper thus disfigured ought
to be stricken from the files. This, however, was not necessary to be-
said, as that matter was not a point of the case. The remark was only
intended to indicate a better practice. Garrity v. Wilcox, et al., 83-
111. 159.

1898. A judgment to bear interest at ten per cent, per annum
until paid was proper on a note bearing interest at the rate of ten per
cent, per annum " from date until paid," the statute authorizing ten
per cent, interest when the note was executed. Crosthwait & Co. \.
Misener, 13 Bush, Ky. 543.

1899. When at the place of contract the rate of interest differs-


from that at the place of payment, the parties may stipulate for either
rate, and the contract will govern. Cromwell v. County of Sac, 96 U.
S. 51.

1900. The bonds of a railway company were made payable on
the first day of January, 1861, with interest, "at the rate of six per
cent, per annum, payable half-yearly, at said treasurer's office, on the
first days of July and January of each year after the first day of Jan-
uary, 1851, upon the surrender of the corresponding warrants hereto
annexed." Held, that interest after maturity and the payment of all
the coupons was recoverable by way of damages for the detention of
money due, and should be computed at six per cent., without semian-
nual or other rests. Ashuelot R. R. Co. v. Elliot, 57 Hall, N. Y. 397.

1901. By the act of 1872 it was provided " that no greater rate
of interest than six per centum per annum shall be recovered in any
action except where the agreement to pay such greater rate of inter-
est is in writing." The agreement in the note to pay eight per cent,
should not be construed to extend beyond its maturity, especially in
face of the stipulation, where the interest after maturity is treated as
a penalty, not covered by the contract, and liable to be raised on a con-
tingency. Fisher v. Bidwell, 27 Conn. 363 ; Brewster v. Wakefield,
22 How. 118 ; Ludwick v. Huntzinger, 5 Watts & Serg. 51.

1902. Upon the bonds of a railroad corporation received, by one
who has advanced the money with which they were taken up, under
an agreement that they were to be delivered to him uncanceled as se-
curity for the advances, as against the corporation are valid securities
in the hands of the holder, and a mortgage upon the corporate property
given to pay the bonds may be enforced for his benefit. Union Trust
Go. of N. Y. v. Monticello and Port Jervis R. R. Co., 18 Sickels, N.

y. 311.

1903. Where the contract does not fix the rate of interest to be
paid after the maturity of the date, the law fixes the rate at six per
cent. Evans v. Chapel, 13 Bush, Ky. 121.


1904. To an action for mone} r loaned, and for interest upon
money loaned and upon an account stated, a plea that the several
promises were to pay interest at a greater rate than ten per cent, per
annum, and that such promises were not in writing, is bad. If upon
payment of the principal sum due on a promissory note, the maker
promises to pay interest due on the same note at a future day, and the
payee thereupon cancels the note, and deliver it to the maker, to en-
able the latter to show it to other parties with whom he has dealings,
an action may be maintained upon such promise. Hall v. King, 2
Colorado, 711.

1905. When both parties lived in Virginia during the war, the
creditor is entitled to war interest. Johnston, Trustee, Etc. v. Wilsons
Adm'r, et al, 29 Grattan (Va.) 379.

1906. Sureties liable for interest as damages in an action upon an
official bond. Interest upon the balance due from the principal was


properly allowed from the date when he rendered his account. Jen~
ness v. City of Blackhawk, 2 Colorado, 578.

1907. Ten per cent, interest for discounts on loans can be taken
under the general banking law of Michigan (Comp. L. 2185.)
Cameron, et al. v. Merchants' & Manufacturers' 1 Bank, 37 Mich. 240.

1908. Where ten per cent, interest is exacted, the rate need not be
expressly stated in writing ; It is enough if the contract clearly ex-
presses the sum to be paid. The statutory requirement that stipula-
tions for ten per cent, interest shall be in writing was meant to prevent
ambiguity as to what interest was to be paid, and to conform to the
rule rejecting parol explanations of writings. Ibid.

1909. A promissorjr note was made in 1872, with interest pa3 - able
semiannual!}' at the rate of eight per cent, per annum, which was then
legal. The note was given for a loan made by a corporation, and was
intended to run for several years. In 1875 an act was passed limiting
the rate of interest in Connecticut for money loaned to seven per cent.
Held, that eight per cent, continued to be the legal rate of interest upon
the note, after the act was passed, and until the note was paid.

1910. The note was given by a husband and wife and secured by
a mortgage of her land. The husband at the same time signed a paper
agreeing to an increase of interest so long as any interest remained
unpaid, and to a foreclosure if it remained unpaid sixty days after due.
Held, that this paper was admissible for the purpose of showing that a
permanent loan was intended. Seymour v. Continental Life Ins. Co. t
44 Conn. 300.

1911. The act of April, 1873, Code of 1873. ch. 173, 14, p.
11-20, which authorizes the abatement of war interest upon debts con-
tracted before the 10th of April, 1865, is unconstitutional and void ;
and a creditor residing in Virginia during the war is entitled to have
interest upon his debt. Pretlow v. Bailey's Ex'r, et al., 29 Grattan
(Va.) 212.

1912. In a state where the law allows as high as ten per cent, per
annum interest, a decree will not be reversed, because it allows against
a fraudulent administrator eight per cent, with annual rests. Hook
v. Payne, 14 Wall. II. S. 252.

1913. A provision in a judgment of another state or territory, al-
lowing interest on the amount thereof at a rate specified, does not con-
trol where suit is brought upon the judgment in this state, as the in-
crease is allowed, not as interest but as damages, its measure must be
that of the state where the action for its recovery is brought. W. F.
& Co. v. Davis, 105 N. Y. 670.

1914. Interest is not allowable in an action for the breach of a
contract, if the damages sought to be recovered are so unliquidatable
and uncertain that they must be made certain by proof and adjudica-
tion. Coburn v. Goodall, 72 Cal. 498.

1915. When, at the time of an agreement for a loan, nothing is
said as to the rate of interest, the law implies it to be that limited by
statute ; to increase or alter it, a special agreement is necessary, and
where the defence of usury is interposed, the burden of showing that
such an agreement was made is upon the defendant. Guggenheimer v.
Oeiszler, 81 N. Y. 293.

1916. It was stipulated in plaintiff's mortgages which were exe-


outed prior to the passage of the act (chap. 538, Laws of 1879) re-
ducing the rate of interest to six per cent., that the principal sum
should bear interest at seven per cent, until paid. By the decision and
judgment entered thereon, interest was directed to be paid on the
amount found due, from the date of the decision, at the rate of seven
per cent. Held, error; that after entry of judgment the mortgages
were merged therein, and thereafter plaintiff was entitled to interest,
not by virtue of the mortgages, but of the judgment ; and so, that the
interest should have been at the lawful rate. Taylor v. Wing, 84 N.
Y. 471.

1917. An allowance for the failure to pay at maturity money due
by contract, is regarded as damages for the breach of contract, not as
interest on the money due. The measure of such damages is the value
of tbe use of the money during the time for which it has been withheld.
The stipulation of the parties as to the rate of interest after maturity
may be accepted as the measure of damages, provided they adhere to
what may be reasonably sufficient to compensate the loss arising from
the breach of contract.

1918. If, however, the rate of interest specified in the contract
greatly exceeds the real value of the money, it is to be regarded as a
penalty for non-payment of the principal sum, rather than a just
recompense for detaining it.

1919. In the absence of evidence as to the current rate of in-
terest at the time the contract was made, the rate specified in the con-
tract may be accepted as the true measure of damages. Browne \.
Steck, 2 Colorado, 70.

1920. Compound Interest is never allowed, except in special cases;
as, where there has been a settlement of accounts, after interest has be-
come due ; or there has been an agreement for that purpose, subse-
quently to the original contract ; or a master's report, computing
principal and interest, has been confirmed. Connecticut v. Jackson, 1
Johns. Ch. 13 ; Stoughton v. Lynch, 2 Johns. 209.

1921. C. and P. executed their single bill, dated October 18, 1871,
whereby they promised " six months after date to pay to H. or order
the sum of seven thousand dollars, with interest at the rate of 12 per
<centum per annum from date." Held, 1. The contract for interest at
the rate of 12 per cent, per annum, was legal under the constitutional
provision in force at the time of the contract, and is not affected by the
subsequent abolition of that provision. 2. The obligors in the bond
are bound to pay interest after the rate of 12 per cent, per annum, not
only up to the maturity of the bond, but after maturity and until the
payment thereof. Cecil & Perry v. Hicks, 29 Grattan (Va.) 1.

1922. An agreement, made at the time of the original loan, that
interest shall be compounded, in case of default in paying it when due,
is not valid. Van Bemschooten v. Lawson, 6 Johns. Ch. 313 ; also. Van
Rensselaer v. Jones, 2 Barb. N. Y. 643.

1923. Where a promise is made to pay in labor and material in
annual payments, interest does not begin to run until the year is com-
pleted in which any given payment is to be made, and the debtor
is in default. Fredenburg, Adm. v. Turner, et al., 37 Mich. 402.

1924. When interest is made payable annually upon a fixed date,
the fact that the first instalment falls due within a year is not a


departure from the terms. Griffin, et al. v. Johnson, et al., 3T
Mich. 87.

1925. Upon a guaranty indorsed upon a promissory note, the in-
terest specified in the note, as well as the principal sum, may be re-
covered. Martin v. Hazard Powder Co., 2 Colorado, 569.

1926. A promise to pay on demand 200, with interest, is a prom-
ise to pay interest from the date of the note. Baxter v. Robinson, 2
Rev. de Leg. 439, K. B. 1816.

1927. A note which contains the following as to the interest,,
viz: " With interest at the rate of sixteen per cent, per annum from
date," bears the legal and not the conventional rate of interest, after
maturity. Newton v. Kennerly, 31 Ark. 626.

1928. By the statute of 1869-70, p. 699, accounts draw interest
only from the day on which they are settled, and a balance is ascer-
tained. Bank of California v. Northam, 51 Cal. 387.

1929. A depositor in a national bank, when it suspends paj^ment,.
and a receiver is appointed, is entitled, from the date of his demand, ta
interest upon his deposit. The interest being a liquidated sum at the
time of the payment of the deposit, an action lies to recover it, and in-
terest thereon. National Bank of the Commonwealth v. Mechanics'
National Bank, 94 U. S. 437.

1930. The holder of coupons attached to town bonds, where the lat-
ter recite that they are issued in pursuance of a duly authorized sub-
scription for stock of a railroad compan}', which before the subscription
was actually made had become consolidated with another, thereby
forming a third company, and the authority to subscribe was limited
to the first company, is not entitled to recover thereon, as sufficient
notice of the objection to the validity of the bonds is contained
in their recitals. Harshman v. Bates County (2 Otto,) U. S. S. Ct^
92, 569.

1931. In order to entitle a creditor to interest on a debt from the
time when the debt was payable, if such debt be pa3 7 able by virtue
of some written instrument at a certain time, it is not necessary that
the day for the payment should be mentioned in the instrument ; it is-
sufficient if a time or event be fixed, the date of which can be ascer-
tained afterward. Duncomb v. Brighton Club and Norfolk Hotel Com-
pany, 10 L. R. Q. B. 371 ; 44 L. J. Q. B. 216 ; 23 W. R. 795 ; L. T. N.
S. 863.

1932. Interest where allowed, not under contract, but by way of
damages, the rate must be according to the lex bori. Goddard v.
Foster, 17 Wall. U. S. 124.

1933. Where interest as a general thing is due and there is no-
statute in the place where the account is settled and the transaction
takes place, giving interest, in such case it is to be allowed at a reason-
able rate, and conforming to the custom which obtains in the com-
munity in dealings of the same character as the one on which the suit
arises, by way of damages for unreasonably withholding an overdue-
account. Young v. Godbe, 15 Wall. U. S. 562.

1934. A party suing, not on a note, but on the consideration for
which the note was given and using the note as evidence rather than
as the foundation of the claim may have lawful interest on the sum
due him although by note given on a settlement the part}' ma} r have


promised to pay unlawful interest, and such as the law of the state
where the note was given visits with a forfeiture of all interest what-
ever. Newell v. Nixon, 4 Wall. U. S. 572.

1935. A prohibition against lending money at a higher rate of in-
terest than the law allows will not prevent the purchase of securities
at any price which the parties may agree upon. Ibid.

1936. Compound interest is not usury ; nor is a stipulation in an
original contract that the interest shall be compounded if not punctu-
ally paid, either illegal, immoral, or contrarj' to public policy ; nor,
a fortiori, is such an agreement; much less will it interfere after judg-
ment at law founded upon the agreement. (Cited in Ward v. Brandon,
1 Heisk. 493.) Hale v. Hale, (1 Caldwell) 41 Tenn. 233 ; also, Mowry
v. Bishop, 5 Page. N. Y. 98.

1937. Whether a negotiation of securities is a purchase or a loan,
is ordinarily a question of fact ; and does not become a question of law
until some fact be proven irreconcilable with one or the other con-
clusion. Oalveston Railway v. Cowdrey, 1 1 Wall. U. S. 459.

1938. Though the negotiation of one's own bond or note is ordi-
narily a loan in law, yet if a sale thereof be authorized by an act of
the legislature it becomes a question of fact, whether such negotiation
was a loan or a sale. Ibid.

1939. Interest is due on coupons, after pa3 r ment of them is un-
justly neglected or refused. Aurora City v. West, 7 Wall. U. S. 87.

1940. Interest is not allowable as a matter of law, in cases of
tort. Its allowance as damages rests in the discretion of the jury.
Lincoln v. Claflin, 7 Wall. U. S. 132.

1941. Interest is, apparently, not sanctioned by the Supreme Court
on claims against the government. Gordon v. United States, 7 Wall.
U. S. 188.

1942. Interest in mutual accounts is to be cast on the annual
balances. Davis v. Smith, 48 Vt. 52.

1943. Interest on a note payable on demand runs only from de-
mand, or suit brought, and the fact that the note was given for money
received at the time it was made does not change the rule. Suit on a
note payable on demand may be brought without a previous request
for payment, the suit itself being equivalent to a demand. Hunter v.

Wood, 54 Ala. 71.

1944. Interest at the rate of only six per cent, can be recovered
where no rate of interest is agreed upon between the parties. Convey
v. Sheldon, 1 Bradwell's, 111. App. Rpts. 555.

1945. As to parties holding simply the relation of creditor and
debtor, compound interest will not be allowed. Force v. Elizabeth, 28
N. J. Eq. 403.

1946. On a note payable on demand, with the rate of interest speci-
fied therein, interest is to be computed at such rate till the rendition
of verdict, or default. Colby v. Bunker, 68 Me. 524.

1947. As a mere incident, interest on interest is not allowed, but a
promise to pay it is not illegal or without consideration ; and the
weight of authority is perhaps in favor of the validity of the promise,
at law, whether made at or subsequent to the original contract. Paul-
ing v. Creagh, 54 Ala. 646.

1948. A note bearing interest over ten per cent, per annum, from


due until paid, carries the stipulated interest to the date of the judg-
ment, and the judgment bears ten per cent. Budgett v. Jordan, 32
Ark. 154.

1949. A note which contains a stipulation for interest, at the rate
-of ten per cent., etc., from date, bears six per cent, interest (the legal
rate) after maturity, and a judgment thereon should bear six per cent,
interest. Pettigrew v. Summers, 32 Ark. 571.

1950. A note which stipulates for interest from date until ma-
turity, at the rate of ten per cent, per annum, bears the statutory rate
(six per cent.) after maturity. Woodruff v. Webb, 32 Ark. 612.

1951. Only legal interest will be allowed when a larger interest is
not stipulated in writing. Buckley v. Seymour, 30 La. 1341.

1952. On a note payable on demand, with interest at ten per cent.,
that rate of interest is recoverable up to the date of the verdict, when
damages are assessed by a jury, and up to the date of judgment when
& default is entered in a suit on the note. Paine v. Caswell, 68 Me. 80.

1953. When a note contains a stipulation for interest, at the rate
often per cent, per annum until matui'ity, and two per cent, per month
^,fter maturity, the increased interest after maturity cannot be treated
AS a penalty. When judgment is recovered on a note, the contract ia
merged in the judgment, and it bears statutory rate of interest.
Miller v. Kempner,%% Ark. 573.

1954. A loan of money was made for two months at two per cent,
a month, at the expiration ,of which time it was contemplated a new
arrangement would be made. After the expiration of the two months,
no other arrangement having been effected, the court held the lender
-entitled to claim interest at the rate originally agreed upon, and to sell
the notes held by him as security, to repay himself the amount of his
claim, subject only to the question whether he had sold the notes for
the best price that could be obtained for them ; and as to which the
court directed an inquiry by the Master. O'Connor v. Clarke, 18
Grant, Ontario Chancy. 422.

1955. One to whom money is paid, and who receives it believing
that it is his due, is not liable for interest upon it before demand made
and refusal to pay, nor until he shall have reason to be satisfied that
he ought to repay it, and shall know to whom he should pay it. Ash-
hurst v. Field, 28 N. J. Eq. 315.

1956. Interest on a judgment or debt due is computed up to the
time of the first payment, and the payment so made is first applied to
discharge the interest, and afterwards, if there is a surplus, it is ap-
plied upon the principal, and so toties quoties, taking care that the
principal thus reduced shall not at any time be suffered to accumulate
by the accruing interest. Davis v. Neligh, 7 Neb. 78.

1957. When interest is recoverable merely as damages, an action
cannot be maintained for its recovery, after payment of the principal.
This, when a bequest or contract is silent as to interest, so that, if it
can be recovered at all, it can only be recovered as damages, an action
to recover it cannot be maintained after the payment of the principal.
American Bible Soc. v. Wells, 68 Me. 572.

1958. In the absence of a written agreement, by the defendant, to
pay eight per cent, per annum interest, only legal interest can be re-
covered. Bayly & Pond v. Stacey & Poland, 30 La. 1210.


1959. The condition of a mortgage, dated June 28, 1871, was that
the principal should be paid on April 1st, 1873, "with interest annu-
ally on the first day of April in each year." An action was com-
menced to foreclose the mortgage December 23, 1872, upon the ground
of default in the payment of interest alleged to have become due
April 1, 1872. Held, that by the stipulation as to interest reference
was had to, and it was intended to provide for a payment of interest
prior to the time when the principal became due, and that plaintiff's-
claim was well founded. Cook v. Clark, 68 N. Y. 178.

1960. When a party agrees by note to pay a certain sum at the
expiration of a year, with interest on it at a rate named, the rate being
higher than the customary rate of the State where he lives, and doe&
not pay the note at the expiration of the year, it bears interest, not at
the old rate, but at the customary or statute rate. Burnhisel v. Fir-
man, 22 Wallace (U. S.) 170. If, however, the parties calculate inter-
est, and make a settlement upon the basis of the old rate, and the debtor
gives new notes and a mortgage for the whole on that basis, the notes-
and mortgage are, independently of the Bankrupt Act, and of any
statute making such certificates void in'toto as usurious, valid securities-
for the amount which would be due on a calculation properly made.
They are bad only for the excess above proper interest. Ibid.

1961. Under the provisions of the Banking Act of 1870 (chap.
163, Laws of 1870), prohibiting banks from charging upon any discount
a rate of interest greater than seven per cent., and in case a greater
rate of interest has been paid, authorizing a recovery by the party pay-
ing it of twice the amount, it is not necessary that the payment should
be made in money to subject the receiver to liability. Nash v. White's
Bank of Buffalo, 68 N. Y. 396.

1962. When commercial paper is transferred to and discounted by
a bank at a greater rate of interest than seven per cent., and the net
proceeds, after deducting the interest charged, are credited to the trans-
ferrer, this is a payment within the meaning of the statute. The fact
that the paper discounted is business paper, so that the purchase
thereof is not usurious under the general statutes, does not relieve from
liability under said act. Ibid.


1963. A party consenting to a proceeding which he might prevent
by resisting it on account of irregularity, thereby waives all exception
to such irregularity. Patton v. Hughesdale, 11 R. I. 188.



1964. The provision of the Code of Civil Procedure ( 758), pro-
viding that the estate of one jointly liable with others shall not be dis-
charged by his death, does not affect contracts entered into before its
passage. The provision is not merely remedial, as it imposes, in some
<;ases, an obligation where none existed before. Eandall v. Sackett, 77
N. Y. 480.


1965. The reversal of a judgment destroys its efficacy as an
estoppel. Smith v. Frankfield, 77 N. Y. 414.

1966. After the satisfaction of a judgment in favor of plaintiff it
is within the discretion of the court to vacate it and to amend the com-
plaint by adding new causes of action, although by so doing the statute

Online LibraryJames H MonroeMonroe's digest of standard decisions of the courts of last resort of the United States, Canada, England, Scotland and Ireland : upon questions in law and equity relating to banks, banking, commerce, trade and manufacturing → online text (page 35 of 80)