Show decision of the supreme court of the united states no DECEMBER TF TERM R r 1871 1872 brigham young attee trustee in binl trust for the C church h ot f in error to jesus jesua christ ot of L latter tt t the supreme D day saints plaintiff in court of the error territory ot of TS utah william S godbe mr jr justice DA pus delit delivered crea cred the i opinion 0 of f tha the court the controversy in this case turns on the question whether young in his character of trustee in trust owed Godbe the money or whether the deseret irrigation and canal company of which young had the management was vas properly with it the evidence on both sides was directed to the elucidation of this point for there did not seem to be any dispute that godbe had advanced the money to young either as trustee or for the use of the canal company godbee effort was fo to show that young as trustee received it while young sought to cast the debt on the canal comp company finy after the defendant had closed his testimony the plaint plaintiff hT placed upon the stand one armstrong who testified that he was in 1865 IM bookkeeper of kimball lawrence merchants of salt lake city who had a large account against the canal company that lawrence took this account ani and went away and in a short time tim e returned stating that the trustee in trust had settled it by giving credit to a certain person on tithing and that it so appeared on the books of kimball lawrence this testimony was objected to by the defendant for the reason that it was not in rebuttal rebut eai cal and therefore illegal but the court overruled the objection and permitted the testimony to go to the jury for what it was worth wo we are not prepared to say that godbe could not rebut the thel case made by young by showing bowing that the tile affairs of the company were so connected with the church that as one of the witnesses said he did not know the di merence difference between them but the evidence on this subject should nt othave have been the declaration by one person of what another said the fact that young had settled the ic count account of kimball and lawrence in the way he did was proper evidence to go to th the eJury jury if lawrence had testified to it but armstrongs ls statement of what lawrence told him was puro hearsay besides the court on its own me motion enlarged the scope of the evidence by directing the jury to consider it for what it was worth this direction enabled the jury to hakea wider range of the subject than they ot berwise otherwise would and naturally inclined them to consider the evidence as fixing the right of the plaintiff to recover from the defendant in the capacity in which lie he was sued on account of the error in admitting t i the testimony of armstrong ai nt the effect which the jury should give to it the judgment will have to be reversed buta but as the case goes back for a new trial it is proper to say a word upon the subject of interest which seems moe more mo e than anything else to be tia the chief point of diffie difference rence renco between the parties to this litigation ve we clin elin can see no objection to the charge of the court on this subject if a debt ought to be paid at a particular ticul artime antime time and is not owing to the default of the debtor the creditor Is entitled to interest from that time by way of compensation for the delay in payment and if the account be stated aa the evidence went to show was the case here iu in terest begins to run at once 1 I 1 american leading cases ath edition pp ap and it is said there is no law in the territory of utah prescribing a rate of interest in transactions like the one in controvert cont in this suit and that therefore no interest can be recovered but this result does not follow if there is no statute on the subject interest will be allowed by way of damages for unreasonably withholding payment of an overdue acco account the rate must be reasonable and conform to the custom which obtains in the community in dealings of this character the ta 9 judgment is reversed and a venire de novo awarded 3 D W Y MIDDLETON C cucu S C U S in r bismarck consumes a keg of beer every two days great wan man man bismarck |