May v. Stern

Headnote

Interest—when changeable on running account.

Appeal by defendant from judgment in favor of plaintiffs, en tered on the report of a referee.

The appeal relates to a counter-claim of defendant, that on a certain running, unliquidated account, the defendants were improperly charged with interest upon charges against him ; that he had paid part of such interest upon the express promise of plaintiffs to repay the saíne to him.

The court at general term said : “The only reason on the record, why plaintiffs’ charge of interest should not be supported, appears in the "counter-claim. That alleges in substance that the defendant paid the interest, and afterwards the plaintiffs expressly promised to repay it to him. There was no testimony that tended to show that this express promise had been made. Further, the evidence did show that, in fact, the defendant did what was equivalent to a payment of the interest. He made a payment,' which was credited to him in the account, the amount of which was ascertained by charging him with interest. As this was done after a claim of right to interest was made by plaintiffs and disputed by defendant, it was a final settlement of

the matter, made with knowledge of the facts. After this payment, the defendant knew he was to be charged interest in the account, and his continuance of the account was acquiescence in the charge, which is a legal ground of his liability to pay interest. Although from time to timé the defendant said to the plaintiff that the charge. was wrong, and that he would not pay interest, the case shows that these declarations were extrinsic to other declarations, and to acts done by the defendant, which in themselves constituted the settlement and the acquiescence referred to.”