Tarpley v. Wilson

Handy, J.,

delivered the opinion of the court.

This case depends upon the written contract between the parties.

The substance of the contract was, that if the suit against the heirs of Caldwell, “to recover the title to the land,” should be decided in favor of Caldwell’s heirs, then Martin Pleasants & Co. should refund to Tarpley the money paid by him to them, and that the collateral securities placed by them in his hands for that purpose, should be absolutely his property; otherwise, that he should restore them to Martin Pleasants & Co.

It is not a forfeiture of the interest reserved by this agreement in the securities placed in Tarpley’s hands, that he was turned out of possession of the land, by another action at law of Caldwell’s heirs, and that he is now out of possession, and has to resort to his action to recover possession, unless such recovery would prevent the suit mentioned in the agreement, from being decided in favor of the complainant. For the agreement extended only to the suit between the complainant and Caldwell’s heirs, then pending in chancery; and it was only upon the decision of that suit in favor of Caldwell’s heirs, that the securities became the absolute propertv of Tarpley. Martin Pleasants & Co. had the right to stand upon the terms of their contract.

The question then is, has the chancery suit not been decided in Tarpley’s favor, under the terms of the agreement ? It is plain that it has been.

But it is said that this was not done in a reasonable time, and in consequence of the unreasonable delays and laches of Martin Pleasants & Co. that the land has been much depreciated, andTarpley much injured.

It is true, that a party stipulating to do a particular thing, as his part of the contract, is bound to use diligence, and to perform it in a reasonable time. But this rule could not apply with strictness to a case of this kind, which depended as well upon the rules and action of the court in which it was pending, as upon the diligence of the party charged with its management. In this case, the successful prosecution of the suit depended much upon the action of the court. And the answer shows that the proceedings of the court did not form an exception, to the almost proverbial tardiness of chancery courts. • The presumption of law would be, that there was no undue delay on the part of the court, and that if there had been any laches on the part of those representing the complainant, the case would have been dismissed by the court for want of prosecution. It appears that the attention of the court was directed to that very point; and the fact, that the suit, after it had been dismissed for want of prosecution, was reinstated bjr the court, must have all the effect of a decision of the court that there was not unreasonable delay in its prosecution.

For aught that appears then, considering the proceedings of the court and the acts of the defendants, in a judicial view, the presumption of law is, that the cause was prosecuted and determined with proper diligence, and that any apparent delays were such as were recognized by the court, and proper. Any other rule than this, would necessarily involve the consideration, whether the court had done its duty in having the cause attended to with proper diligence.

We cannot therefore say that the suit was not decided within a reasonable time, or that it was delayed in consequence of the negligence of the defendants in this suit; and it follows, that upon the decision of the suit in favor of Caldwell’s heirs, the defendants were entitled to the notes placed in the complainant’s hands, and in this respect that there is no error in the decree.

It remains to consider, whether the appellant is liable for interest, and if liable, at what rate and from what time.

It appears distinctly, by the answer of the appellees to the original bill, that two notes came to the appellant’s hands for $2072 82 each, dated 15th January, 1844, and bearing interest at the rate of eight per cent, from date, and which remained unpaid, except the sum of $809, paid to the appellees on the 13th April, 1846. This answer is made a cross-bill, and the appellant is called upon to answer, as to the above statements in relation to the notes which came to his hands, and whether he had not collected and appropriated to his use the balance due on these notes, and to state the time when he collected the money thereon. In his answer, he admits that he collected the amount of the two notes above mentioned, which he stated amounted, as well as he recollected, to about $4000, except the sum of $309, paid to the appellees. He does not deny the date, amount, and tenor of the notes as stated in the cross-bill, and distinctly “ admits himself to be chargeable with the amount of these two notes with interest on them, less the sum of $309.”

This is conclusive upon the point that he is liable for interest, having appropriated the money to his own use and admitted his liability, which was clear, for interest, in consequence of that application.

His answer does not state the time at which he collected the money, and there is no proof upon that' point. According to his admissions, he is clearly liable for the amount of the two notes, less $309, from their date, at the rate of eight per cent, until they were collected by him, that being the rate of interest which they bore, and as he has not shown when he received the money, although required to do so by the cross-bill, he must be considered as having received it at the time of filing his answer to the cross-bill, which, appears to have been on the 3d December, 1850. He is chargeable with the aggregate amount of principal and interest on the notes (after deducting the credit of $309), that being the amount of the appellees’ money which he received, and that sum is chargeable with interest at the rate of six per cent, per annum until paid, that being the rate of interest -which was allowed by law at that time.

The decree is founded upon a different rule of interest from this, and is erroneous. It must, therefore, be reversed, and the cause is remanded for a new account and decree, upon the principles herein stated.