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Show I LEGAL DECISION. ! The following decision rendered by ' Associate Justice Ilawley, in the Su-i Su-i prcuic Court for the Territory of TJlah on the 11th inst, contains points of considcrabli! interest io business men generally : , United Stales uf America, ) 1 Territory of Utah. j 53 ' In tho Supreme Court 'of the Territory of Utah, March 13th, A. I)., 1ST h Appeal from the Third Judicial Dis-i Dis-i trict Court of Utah. John Taylor, Appellant I vs. r Appeal CA.&R.H.l'erry, Appellees. J I This is an appeal from the Third ! Judicial District Court, C. C. Wilson, ; C. J,, presiding. The facts in the case are stated in the opinion of the Court. : A. Miner, h!.-'., fur Appellant. " 1 II. N. Iiaskin, Kq., lor Appellees. H.wvr.TA", Justice. Thin vras an action in assumpsit, ! brought upon a promissory note in the ! third judicial district court, by the do-; do-; fondants in error, against Chauncey ' W. Weal, John Taylor and Levi I Wheeler, as joint and several makers of said note, wliich reads as follows: ! 920.7U. Great Salt Lake City, ; Aug, 10th, 1 SOT. Twelve months after ! date, we or cither of us promise to nav C. A. it K II. l'erry, or order, the sum of nine hundred and twenty dol-, dol-, lars and seventy cents for value recciv I ed, without defalcation or discount, with interest at the rate of two (2) per 1 cent per month from date, rev. Chauncev W. West. stamp John Taylou, 50o. Levi Wheeler." Tho defendants in error commenced their said action in tho court below, in ' tho name of "C. A. & K. 11. Perry, plain tills," as though they wero copartners, co-partners, without averring a copartnership. copartner-ship. Neither of their christian names appears upon the record. As objectionable objec-tionable as this is, and as obnoxious as it was to a demurrer, no advantage advant-age was taken of it by the defendants de-fendants in the court below, nor has there been any interposed by tho plaintiff plain-tiff in error in this court; this fault may therefore be considered as waived. Jiy the return of summons it appears that John Taylor only uas served with process, and that be failed to file his answer, or to make any objection whatever what-ever until the day of trial and judgment. judg-ment. From the bill of exception it appears that the case was brought on for trial on the Oth day of October, Oc-tober, 1SG9; when his default was taken. The case was then called for trial; anl without any formal waiver wai-ver of a jury on the part of Taylor, it was tried by the court; but on the argument in this court, it was stipulated stipu-lated by and between the parties, that there was in fact a waiver of a jury, and the record was accordingly so amended. It appears from the record, that there was, on the first day of April, naid on said note the sum of$:i00,andouMicl5thof May fol- ! i lowing, the sum' of $102.50. It ap- 1 i pears from the bill of exceptions, that I on the introduction of said note as 1 evidence in tlig court below, the said ! defendants ii error insisted that tho measure of damage for the non-payment of said note when due, and from ; that timo until tle day of the judg- i i mcnt, was the interest upon the same, j j at the rate of two per cent, per month; to which the plaintiff in errorobjeeted; which objection was over-ruled, and ; exception was taken thereto; and thereupon, there-upon, James M. Carter was sworn under the ruling of the court, to com-I com-I pute the interest upon said note, up to that timo, at the said rate of two per ( cent, per month; and that upon such j computation, thero was found duo j upon the note the sum of $'Jll.70; and thereupon the defendant in error j asked for a judgment in that amount i for principal aud interest as damages, to which tho plaintiff in error objected, and insisted, that, the samo was too great, which objection was overruled, and tho appellant took exception ; thereto; and thereupon, the said caurL rendered judgment against the auid appellant and in favor of the said appellees, ap-pellees, i'or damages in the said sum of $',111. 70, and costs, to which judgment the said nppellant took exceptions for that cause, and assigns the same as ; error. Neither tho record, nor tho bill of! exceptions, show any evidence to prove what the actual damaj-e was to defendants defend-ants ii! error, which th y sustained by the law of custom, by reason of the detention of the money due upon the note after its niuturit ; nor was there any ovidence to prove what the money was actually worth from and after said time. It seems to have been taken for granted by defendants in error, and by the court below, that Irom and ! after said note became due and nava- i blc, the measure of damage for tho detention de-tention of tho money due upon it, was two per cent, per month, the same as specified in the note, for its use not only up to tho timo it became duo and pay a bio by its terms, but after that timo, as aforesaid. But such is not tho law. Tho agrccmont to pay interest, which is contained in the note for two per cent, per month, did not extend beyond be-yond the time tho same became duo and payable by its terms; and thorc being no other agreement for interest, to dctcrmino the damage as interest, after the noto became due; and thero being no alhrmativo law Gxing the rate of interest from and after the same became due, Buch damage by way of interest or otherwise should have been left to bo determined by proof. The statute (since repealed) approved Feb. 1-1, 1S09, which provides "that it shall not be lawful to take moro than ten per cent, interest per annum, when the amount of interest has not been specified speci-fied or agreed upon," is entirely negative nega-tive in its character. It docs not be-como be-como necessary in this caso to construe said statute, or to dctido whether or not, during its life, it actually fixed tho amount of damage by way of interest at tea per oent. per annum. If such is its proper construction, and that ten per cent, was not simjily the maximum rate under it, it would not help this case, for this rule was not followed by tho court; but rather, the measure of interest named in the noto after, as well as up to the time, it became due, to wit, at the rate of two per cent, per month. This was manifestly wrong; for tho said statute fixed the maximum rate not to exceed that of ten per cent. This view of the law was fully sustained by the supremo court of the United States in the case of Brewster vs. Wakefield, 22 Howard U. S. 12j; see also Macomber vs. Bun-ham, Bun-ham, 8 Wend. 500; United States bank vs. Chapin, 0 Wend. 471; and Ludwick vs. Ihintsingrc, 5 Watt and Serg. 51.00. As a rule, where there is a statute providing a specific rate of interest, such rate is the measure of damage. But in the absence of such a statute, the measure of damage by way of interest in-terest or otherwise, is determined by proof and the discretion of the jury: under the evidence. j At common law, it was formerly held, ; that in the absence of a special agree-1 mcnt for the payment of a specific rate I of interest, none could be recovered, I either as such, or as damage in lieu of interest : See the case of Reid v.. licnsselacr glass factory, 3rd Cowen, B. 419. in which justices Savage and Sutherland present the law nnd the rule of England find this country in able opinions. But this rule, as will be seen in said case, has been relaxed in Fjnpland, and it is now held both in England and this country, that upon stated and liquidated accounts, fur money had and received, or loaned, , and upon notes past due, where there i is no statute for interest, damages may bo recovered for the detention in lieu of interest in the discretion of the , jury, under proper proof. But where there is a statute, which determines j the rate of interest per annum, such , is the measure of damages in such or j similar cases, on the ground, that the i law considers such damage by way of ; interest, incident to the debt, and ini- ; plies a promise on tho debtor -to pay j it from the day it becomes due, if not I then paid. This implied promise is supported by common justice between man and man, which rests upon every j man to render lo another a fair equivalent equiv-alent for Hie use or detention of that ! which is justly duo to bis fellow man. I Sec 8elleck vs. French, 1 Conn., N. S. 32, 35; Bead vs. Bensselaer glass ' factory, 5 Cowen, It. 5S7; Van Bens-; sclaer vs. Jones, 2 Barbour, Supremo ' Court reports, 051; Parsons on notes and bills, 391, 395, nnte p, 390, note ! q, 397 noto a and v; Sedwick on dam- j ages, 375 lo 390 inclusive, and notes. The plaintiff in error does not ob-! jeet lo the payment of the said ! two per cent, per month dur- ' ing the time of his agreement i so to do, or up to the timo the ', said note became due and navablo. to 1 wit, up to the 10th day of August, 1 SOS, or for twelve months. Nor does ho object to the payment of damages as interest, from and after the note became due as aforesaid, at the rate of ten per cent, per annum. But ho protests against the payment of two per cent, per month, from and after tho note became due to the day tho said judgment was rendered. And in this, we think he was and is entirely right. It follows therefore, that the judgment judg-ment of tho court below should bo reversed; and it appearing from tho statement of counsel for tho plaintiff in error, to wit, that tho plaintiff in error is willing to pay ten per cent, per annum upon the balance due upon said noto after its maturity and it appearing from the record of this caso that this rate of interest would be a proper and just measure of the damage sustained by reason of tho non-payment of said noto and for such lime, and that substantial justice would thereby be done between the parties, it is therefore ordered and adjudged that the judgment of the court below be set aside; and it is further fur-ther considered and adjudged that the said defendants in error have of, and from the said plaintiffs in error, the sura of $907.93 as their damages; and that interest be cast upon the principal princi-pal in said note mentioned from its date to wit, from the 10th day of August, 1SG7, for twelve months, at the rate of two per cent, per month; and upon the balance of principal duo from and after the 10th day of Au- j gust, 1S08, at the rate of ten per cent. i per annum. ! And lor the purpose of disposing of ! the question as io the proper mode of ! casting interest, where thero are par-1 par-1 tial payments as in this case, we will ' further say, that the rule for casting interest as laid down by the books, and which commends itself upon principles of justice, is as follows: "Tho payment is to first apply to the discharge of tho interest due. If the payment exceeds the interest, (he surplus goes towards discharging . the principal, and the subsequent interest is to bo computed on the balance of principal remaining due. Jf the payment be less than the interest, the surplus of interest due mtiHt not be taken to augment the principal; but interest continues on the former principal until the period when the payments taken together exceed the interest due, and then the surplus is to be applied towards discharging dis-charging tiic principal, and interest is Lobe computed on the balance of the principal as aforesaid." Sec Connecticut Connec-ticut vs. Jackson, 1 John, ch. 17; Penrose vs. Hart, 1 Dallas, Penn., -104; Tracy vs. Wickoif, 1 Dallas, Penn, ,133. The clerk will compute the iutcrcst in conformity to this decision, under the rule we have above laid down up to tho present time; and judgment will be entered for damages in favor of the defendants in error and against, the plaintiff in error for the amount so found due; but judgment for one-half the costs of this appeal will bo entered en-tered against the defendants in error and judgment for tho other half against tho plaintiff in error. Judgment reversed, revised an d rendered pursuant to tho decision heroin rendered. |