Bull v. Rich

LEWIS, J.

In the decision rendered upon the appeal of defendants,- supra, page 476, will be found a statement of the facts. In ordering judgment for plaintiffs in those cases, the court disallowed any interest, and this appeal is brought by plaintiffs to review the trial court upon that question.

In the complaint it is alleged that April 8, 1892, plaintiffs, paid the wards, Robert H. and Charles H. Baker, the full amount of the sureties’ liability upon the bonds, and interest is claimed from that date. The answer admitted the payment, and alleged that the proceedings in the probate court at Racine, Wisconsin, were taken without authority of law; that the property secured from the estate by means of the alleged settlement was of greater value than had been accounted for; that the release filed by plaintiffs released defendants, their co-sureties — and charged laches in reference to the disposition of the property secured from the estate and in prosecuting this action.

If plaintiffs had not made settlement with the heir of the guardian, and taken into their possession the personal property mentioned, and undertaken to realize on the same, but had brought this action directly for a contribution, then, by implication, a contract might arise to pay interest from that date. This is the generally recognized rule applicable where money is paid for the use or benefit of another. 16 Am. & Eng. Enc. (2d Ed.) 1011. If the claim had been permitted to remain on file, and taken its distributive share of the dividends in the usual process of administration, no doubt plaintiffs might have prosecuted an action against defendants for a contribution of the amount paid, without waiting for a final settlement of the guardian’s estate and application of those funds. 1 Brandt, Sur. & G. § 274. In such case plaintiffs would have to account to defendants, as co-sureties, for the amount received from the estate; and, had plaintiffs pursued that course, they might have been entitled to recover interest from the date of payment. That plaintiffs received by settlement with the heir property of more value than sufficient to cancel the debt, had the same been handled and disposed of in the proper manner, was the subject of the litgation.

The trial court received evidence upon those questions, determined the value of the property, and charged against plaintiffs a considerably larger amount than they had given defendants credit for. It can hardly be claimed that the liability was fixed and determined until the trial court filed its order for judgment. In the case of Swanson v. Andrus, 83 Minn. 505, 86 N. W. 465, the question of interest upon unliquidated claims is considered; and the general rule is there stated that so long as a demand rested upon a contingency, and was not ascertainable by general, recognized standards, such as market value, interest would not commenccto run until such definite period was fixed.

Under all the circumstances, considering the nature of the securities, the time taken to convert them, and the time elapsing before commencing suit, we are not prepared to say that the court did not exercise a reasonable discretion in disallowing interest, and the holding is fairly supported by evidence tending to show that the amount of defendants’ liability was unliquidated.

Judgment affirmed.

On November 25, 1904, the following opinion was filed:

PER CURIAM.

This action having been submitted on reargument, and having been duly considered, it is ordered that the previous decision be approved and adhered to.