DocketNumber： No. 197
Judges： Clark, Green, Paxson, Sterrett, Williams
Filed Date： 10/5/1891
Status： Precedential
Modified Date： 10/19/2024
Opinion,
The sole question in this case is whether appellant, as a creditor of her deceased husband’s estate, is entitled to interest on the amount of her claim evidenced by his note of January 27, 1873, in which he promises “ to pay to my wife Elizabeth, or order, the sum of seventeen hundred and twenty-five dollars on demand, with lawful interest from this date until paid; without defalcation, value received.”
There was no question as to the genuineness of the note, nor any allegation, even, that any part thereof, either principal or interest, had ever been paid or in any way satisfied. The learned judge appears to have thought, however, that no interest should be allowed until after the death of the maker, because, between husband and wife, as he expressed it, “the presumption of law is that they lived off such interest and consumed it from year to year; and this presumption can only be rebutted by showing that husband and wife lived apart, each on his or her own income.” He evidently misapplied the principle of presumption which sometimes arises from an entirely different state of facts. In the case of an express, written promise to pay interest, etc., such as we have in this case, the principle he intended to invoke can never become applicable, except under special qualifying circumstances which must, of course, be shown by competent evidence.
It is well settled that when a husband receives and uses his wife’s money with her consent, but without any agreement to pay interest, he will not, as a general rule, be chargeable with
There was manifest error in not allowing appellant interest from the date of the note, according to the terms of her husband’s contract.
Decree reversed, with costs to be paid by the appellees ; and record remitted for further proceedings in accordance with tbis opinion.