which it would draw a dividend. Long v. Penn. Ins. Co., 6 Penn. St. 421. In settling losses, the insurers, if solvent, may set off all sums due on premium notes, and a just proportion of the losses up to the time of payment. Swamscott Machine Co. v. Partridge, 25 N. H. 369.

CHAPTER LXXXIII.

INTEREST ON MONEY.

ARTICLE I.

OF INTEREST GENERALLY.

Section 1. General nature of interest. Interest is the compensation which is paid by the borrower of money to the lender for its use and, generally, by a debtor to his creditor in recompense for his detention of the debt. 1 Bouv. Law Dict. 733. 1 Bouv. Law Dict. 733. The liability, in damages, for the wrongful detention of a debt, is a distinct principle from liability to make compensation for a use or benefit derived from the money of another. Hummel v. Brown, 24 Penn. St. 313; Selleck v. French, 1 Conn. 32; S. C., 1 Am. L. Cas. 610.

Interest is a necessary incident to the principal debt, and a promise may be implied to pay it from the day the debt becomes due, if it is not paid. Roberts v. Cocke, 28 Gratt. 207. The promise is supported by the universal obligation which rests upon every man to render a just equivalent for the use or detention of that which does not belong to him. Reid v. Rensselaer Glass Factory, 3 Cow. 393; 5 id. 587; Heath v. Page, 63 Penn. St. 108; 3 Am. Rep. 533. So, arrears of interest relate to the principal charge and form part of it. Wertz's Appeal, 65 Penn. St. 306.

§2. Interest, when allowed. It is a principle, well settled, that whenever the debtor knows what he is to pay, and when he is to pay it, he shall be charged with interest if he neglects to pay. Swett v. Hooper, 62 Me. 54; People v. New York, 5 Cow. 331; Dodge v. Perkins, 9 Pick. 369. So, interest is allowed for services rendered, from the time when the ascertained amount became due. Carpenter v. Brand, 40 N. Y. Sup. Ct. 551; Risley v. Andrew Co., 46 Mo. 382. On money lent from the time of the loan. Rapelie v. Emory, 1 Dall. 349; Lessee of Dilworth v. Sinderling, 1 Binn. 488. On money paid for the account, or to the use or benefit, or at the request of another, from the time of payment. Goodloe v. Clay, 6 B. Monr. (Ky.) 236; Aiken v. Peay, 5 Strobh. 15; Weeks v. Hasty, 13 Mass. 218. On money ad

vanced by a factor or agent, from the time of the advance. Cheeseborough v. Hunter, 1 Hill (So. Car.) 400; Smetz v. Kennedy, Riley, 218; Taylor v. Knox's Exrs., 1 Dana, 391; S. C., 5 id. 466.

As a general rule no interest should be allowed on an unliquidated account for goods, wares and merchandise, without an agreement to allow it, express or implied; because the balance of the account only constitutes the debt, and, until that is ascertained, there is, strictly speaking, no debt due. Reid v. Rensselaer Glass Factory, 3 Cow. 393; S. C., 5 id. 589; Adams Express Company v. Milton, 11 Bush (Ky.), 49; Brady v. Wilcoxon, 44 Cal. 239; Youqua v. Nixon, Peter's C. C. 224. This rule also applies to services rendered on a quantum meruit (Brewer v. Tyringham, 12 Pick. 547; Doyle's Admrs. v. St. James' Church, 7 Wend. 178; Murray v. Ware's Admr., 1 Bibb, 325), and to such charges as a forwarding merchant's for freight, wharfage and storage. Trotter v. Grant, 2 Wend. 413. But interest should be allowed on an unliquidated demand, the amount of which could be ascertained by computation, together with reference to well-established market values; because such values are so nearly certain that it would be possible for the debtor to obtain some proximate knowledge of how much he was to pay. Sipperly v. Stewart, 50 Barb. 62, 69.

It has been held in New York that in an action upon an unliquidated demand interest may properly be allowed from the time of the commencement of the action. McCollum v. Seward, 62 N. Y. (17 Sick.) 316.

In general, interest is not due in law on unliquidated damages, or uncertain demands. Still v. Hall, 20 Wend. 51; Admr. of Congers v. Magrath, 4 McCord, 392; Tatum v. Mohr, 21 Ark. 355. But there are many cases in which, though the damages are unliquidated, yet the amount to be paid, and the time when it should be paid, are sufficiently certain to render the party liable for interest. As in an action on a policy of insurance, in case of partial loss, interest as damages may be allowed from the time when payment should have been made after proof of loss. Vredenbergh v. Hallett, 1 Johns. Cas. 27; Obermyer v. Nichols, 6 Binn. 159; Oriental Bank v. Tremont Ins. Co., 4 Metc. 1-9. In an action for the breach of an executory agreement to deliver articles on a certain day, the measure of damages is the value of the articles on the day when they ought to have been delivered, with interest from that time. Younger v. Givens, 6 Dana, 1; Enders v. Board of Public Works, 1 Gratt. 365; Meason v. Philips, Add. (Penn.) 346. In an action for damages sustained by a collision, interest should be allowed from the day on which the injury happened. The Morn

ing Star, 4 Biss. C. C. 62. But the interest in such cases rests so entirely upon the circumstances of each particular case, that the allowance thereof is commonly said to be in the discretion of the jury. Lincoln v. Claflin, 7 Wall. (U. S.) 132. So, too, as to the allowance of interest in the settlement of partnership accounts. Gyger's Appeal, 62 Penn. St. 73. But where labor and services in a partnership agree ment are put against capital, on settlement of the accounts of the partnership, interest will not be allowed on the amount of cash capital. Jackson v. Johnson, 11 Hun (N. Y.), 509.

Interest from the commencement of the suit is recoverable on a money demand, even though it is not claimed in the petition. Whit aker v. Pope, 2 Woods, 463. And it is payable in the same kind of money as the principal. McCalla v. Ely, 64 Penn. St. 254.

In assumpsit, interest on the principal sum may be made the subject of a charge as one of the items of an account annexed, and may be recovered upon proof of circumstances which would entitle the plaintiff to charge it. Chadbourne v. Hanscom, 56 Me. 554. And interest may be recovered upon a promissory note after the principal has been paid, if the note contain an express promise to pay such interest. Robbins v. Cheek, 32 Ind. 328; 2 Am. Rep. 348. So, interest is recoverable on the penalty of a bond to pay incumbrances from the time of the breach. Beers v. Shannon, 12 Hun (N. Y.), 161.

3. Interest, when not collectible. An action will not lie to recover interest after the principal has been paid, unless there was an express contract to pay interest. Robbins, &c., Co. v. Brewer, 48 Me. 481; Tenth Nat. Bank v. Mayor, &c., of New York, 4 Hun, 429. In the absence of a special agreement to the contrary, bankers are not required to pay interest on ordinary deposits. Parsons v. Treadwell, 50 N. H. 356.

§ 4. Interest, when allowed upon accounts. Where an account has been liquidated by both parties, and the debt therefor becomes due and payable, it carries interest on the same ground of a debt payable at a specific time, viz.: that there is an implied contract to pay. Rensselaer Glass Factory v. Reid, 5 Cow. 589; Selleck v. French, 1 Conn. 32; S. C., 1 Am. L. Cas. 610; Elliott v. Minott, 2 McCord (S. C.), 125. If there be an express promise to pay at a certain time, or an express understanding between the parties that the accounts are to be considered due at a particular date after they are incurred, or there be an established usage of trade, or a custom in the plaintiff's dealings, by which the defendant is affected, to give a certain length of credit, this becomes a part of the contract, and interest is to be allowed after the express or implied term of credit has expired. McAllister v. Reab, VOL. IV.-17

4 Wend. 484; S. C., 8 Wend. 109; Raymond v. Isham, 8 Vt. 258; Obermyer v. Nichols, 6 Binn. 159.

Where a debtor on presentation of his account admits its correctness and promises to pay it, this will render it liquidated, so as to draw interest thereafter. Daniels v. Osborn, 75 Ill. 615; Wood v. Belden, 59 Barb. 549; 54 N. Y. (9 Sick.) 658. But the statement of an account stated, made between trustees and third persons, in which there is an agreement to pay interest upon a sum, part of which was not then legally due, will not bind the cestui que trust although for several years, after he obtains knowledge of such account stated, he gives no notice to such third persons of his dissent therefrom. Church v. Kidd, 3 Hun (N. Y.), 254 ; S. C., 5 T. & C. 454.

A party who receives notes, property and cash, for which he agrees to execute his promissory note in a given sum, makes thereby the account or debt a liquidated one and is liable for interest thereon. Clark v. Dutton, 69 Ill. 379.

The balance of a settled account in which interest is included carries interest on the whole from the settlement. McClelland v. West, 70 Penn. St. 183.

If there be an unreasonable and vexatious delay in making payment of an account, though it be not liquidated, interest may be recovered. Williams v. Craig, 1 Dall. (Penn.) 313; Wills v. Brown, Penn. (N. J.) 548; Jassoy v. Horn, 64 Ill. 379.

Accounts for money lent, paid and advanced, always bear interest. Liotard v. Graves, 3 Caines, 226; Lessee of Dilworth v. Sinderling, 1 Binn. 488; Craven v. Tickell, 1 Ves., Jr., 60. And in an unliquidated account, those items, if any there be, of moneys advanced, paid, laid out or expended, will draw interest from the time of the advance or expenditure. Reid v. Rensselaer Glass Factory, 3 Cow. 393, 426.

§ 5. Interest, when not allowed upon accounts. As has been stated ante, 127, § 2, an open and unliquidated account does not bear interest unless there is an express agreement to that effect (Marsh v. Fraser, 37 Wis. 149; Farmers' Loan, etc., Co. v. Mann, 4 Robt. [N. Y.] 356; Williams v. Hersey, 17 Kans. 18); or unless the delay of payment has been fraudulent, unjust or oppressive. The People v. Gasherie, 9 Johns. 71; Wood v. Robbins, 11 Mass. 504; Brown v. Campbell, 1 Serg. & Rawle, 179. But where the delay is the result of the creditor's failure to press the collection of his claim, and where the principal cause of action is an unliquidated account, unless interest or damages are claimed in the petition, no judgment will be rendered for either. Adams Ex. Co. v. Milton, 11 Bush (Ky.), 49.