Milliken v. Southgate , 26 Me. 424 ( 1847 )

The opinion of the Court was drawn up by

Whitman C. J.

Upon the facts, as stated by the parties, we rio not find ourselves able to come to the conclusion that the plaintiff is entitled to recover. The accountable receipts. given by the defendant, do not contain any promise to account, in any event, for any thing more than the principal sums named therein. These sums were returned as soon as the event occurred, upon the happening of which, they were to be returned. There was, then, no breach of contract, that could authorize an award of interest, by way of damages, for any unjust detention of the money.

But it is insisted, that the defendant, at some time after the money had been received, and before it was repaid, actually promised to pay interest therefor; and there is evidence, which it is conceded might be produced, if admissible, which would tend to show that such a promise was made ; but its introduction is resisted, as, if any such promise was made, it was not, founded on any valuable consideration ; and it is moreover alleged, that if introduced, it would tend to vary the terms of a written contract; and it is further insisted, that the principal having been paid, no action lies to recover interest thereon.

It is not pretended that any promise was made at the times of the making of the receipts. If it were, the evidence of it would clearly be inadmissible, as tending to vary the terms of a contract as expressed in writing; and, if made afterwards, it, was to create a new liability; and a valuable consideration would be necessary to support it, and none such was alleged, or offered to be proved.

As to the claim for interest, when the principal has been paid, it, must depend on the terms of the contract. The dicta in Tillotson v. Preston, 3 Johns. R. 228, and Stevens v. Barrington, 13 Wend. 640, cannot be sustained without qualification : they are too general. If there be a special agreement in writing, predicated upon a valuable consideration, to pay interest on a sum lent, though the principal may have been received as such, it is difficult to perceive upon what legal or equitable principle a court could refuse to enforce its payment; and in Irish v. Eddy, 15 Wend. 76, this qualification seems to be recognized. But, however this may be, as there was no apparent, consideration for the supposed promise of interest, the proof of it might well be excluded.

Plaintiff nonsuito