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Purdy v. Philips

8 N.Y. Super. Ct. 369 1 Duer 369 Court N.Y. Super. Ct. Decision date 1852-12-11 English

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p. 369
Purdy, Executor, &c., of E. Bolmer, deceased, v. Philips and others, Executors of J. H. White, deceased.
(Before Oakley, Ch. J., Paine and Bosworth, J.J.)
Nov. 15;
Dec. 11, 1852.

Headnote

When a bond is conditioned for the payment of a sum certain and no time of payment is specified, the debt is due immediately without demand, and bears interest from the date of the bond.
This action was founded on a hond given by the testator of the defendant to the testatrix of the plaintiff, and dated the 9th July, 1832. The complaint alleged that the whole principal sum mentioned in the condition of the bond was due with interest from the 1st of May, 1850. The bond was in the penalty of $1,400, and was conditioned to be void on the payment of $700; there was no mention of interest, but no day of payment was specified, and no demand required.
The answer of the defendant denied that the bond carried interest, and averred that by successive annual payments the principal sum mentioned in .the condition had been folly satisfied.
The 'cause was tried before Mr. Justice Paine and a jury in December term, 1851. Upon the trial the plaintiff admitted that various payments had been made by the obligor in his life-time, and some by the defendants since his death, which, on the 1st of May, 1850, amounted in the aggregate to a sum exceeding the principal debtthese payments were $60 annually in quarterly payments, from the date of the bond to the 1st of Feb. 1845, and $42 per annum in quarterly payments, from that time to the 1st of May, 1850, and small extra sums amounting.to $30. The counsel for the defendants insisted, that upon the facts thus admitted, they were entitled to a verdict, as the bond carried no interest, and the payments made were more than sufficient to satisfy the principal.
The counsel for the plaintiffs insisted that in law the bond carried interest from its date, and that the payments made ought therefore to be first applied to the interest, and the surplus only to the principal,
p. 370
There was no proof of a demand of payment at any time prior to the commencement of the suit.
The judge directed the jury to find a verdict for the plaintiffs for the penalty of the bond, subject to the opinion of the court at a general term, upon a case to be made.
The cause was now heard upon the case thus directed.
Hoxie, for the plaintiffs,
cited 1 Dallas, 349; 3 Cowen, 436; 5 id. 587; 3 John. Cases 310; 9 John. R. 71; 6 John. Ch. R. 21; 1 McCord, Ch. Ca. 220; 9 Term. R. 124; Hurlston on Bonds. 40; 6 Howard, 156 .
C. W. Sandford, for defendants,
cited 3 Caines R. 234: 7 Wend. 109 .

—The condition of the bond upon which this action is brought, is for the unconditional payment of a sum certain, without specifying any time of payment, whether on demand or on a future day; and the only question in the case is, whether the sum mentioned in the condition draws interest from the date and delivery of the. bond, or not at all?

The general rule as to interest is, that it is due on all liquidated and certain demands from the time that such demands are payable, and we think there can be no doubt that the sum named in the condition was due immediately on the delivery of the bond. The condition is the acknowledgment of a present existing debt.

The proposition that such a debt bears interest is not only in accordance with the general rule that has been stated, but has been expressly adjudged both in England and in the Hnited States. We refer to the cases of Farquhar v. Morris, 9 Term. R. 126, and Francis v. Castleman, 4 Bibb. 282 .

There must be judgment for the plaintiff with costs, and it , must be referred to the clerk to compute the amount now due, making the proper application of the payments to interest and principal.

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