Goff v. Inhabitants of Rehoboth , 56 Mass. 475 ( 1848 )

Shaw, C. J.

The only question raised in this case is, whether the defendants were bound to pay more interest than they tendered and brought into court. It appears to us, that the case falls clearly within that class, in which interest cannot be recovered upon an open and running account, for work and labor, goods sold, and the like, unless there is some contract to pay interest, or some usage, as in the case of the custom of merchants, from which a contract may be inferred, or where the defendant is a wrong-doer in acquiring or detaining money. Hunt v. Nevers, 15 Pick. 500. The only recent case, which countenances the contrary doctrine, is the case of Barnard v. Bartholomew, 22 Pick. 291, and that, we think, was founded on a special promise to pay a specific sum, capable of being made certain, on a particular day.

But, in the present case, there was no demand and refusal. In 1843, the plaintiff presented liis account for services, and the town did not refuse payment, but referred it to the selectmen. The plaintiff did not apply to the selectmen, until a year after, and then presented his demand with additional items. The selectmen allowed all the charges on that bill, which the plaintiff now proves himself entitled to, and gave him notice of such allowance. But, further, in both cases, he presented another large demand, which he sued for, and has failed to establish. Perhaps the trial in this case was the new trial, which was ordered by this court in the action between the same parties, reported in 12 Met. 26. If this is the same case, the principal item in controversy, the demand for rent of the meeting-house, was sharply ‘contested, and large costs were incurred ; and as to the real matter of controversy, the plaintiff was the failing party. If, in any case, a demand would lay the foundation for a claim of interest, it must be a separate and distinct demand for a debt or sum of money, which is afterwards admitted or proved to be due. Oriental Bank v. Tremont Ins. Co. 4 Met. 1; Hubbard v. Charlestown Branch Railroad Co. 11 Met. 124.

But, further, we are of opinion, that the notice given by the treasurer to the plaintiff, that $24-67, being the whole amount of his bill then demanded, except the contested claim on which the defendants prevailed, though not a technical tender, was such an offer as to prevent the accruing of interest by way of damages. Suffolk Bank v. Worcester Bank, 5 Pick. 106.

On both grounds, the court are of opinion, that the direction, given by the judge at the trial, was incorrect, and therefore that the verdict must be set aside, and a new trial had in this court.