Opinion
Argued December 6, 1878
Decided January 21, 1879
Charles Wehle, for appellant.
Edward M. Shepard, for respondent.
The objection that the judgment below is not in proper form and should be " de bonis testatoris" is not one to be taken for the first time upon appeal. If the judgment entered up does not conform to the pleadings and facts found by the verdict, the defendant should move, in the court in which it was rendered, to have it amended. This court sits to correct the errors of the court below, and not ordinarily those of ministerial officers, or of the parties, never properly brought to the attention of those courts.
There was no error in allowing upon the $25 a week, (from 21st December, 1866 to 1st May, 1867), aggregating $464.28, interest, from May 1, 1867, to the day of trial. At the close of the term for which the testator had hired the rooms, he was liable to the plaintiff for this sum, easily ascertainable and certain, because to be ascertained readily by mere computation. The amount received by the plaintiff for the rooms, during this period, was then fully known to her. The defendant knew that he was liable for the $150 a week for this period, less the former amount; and this he could have learned by inquiry from her or her tenant.
It is not a case, therefore, where the amount due was unliquidated and uncertain, in the sense to prevent the accruing of interest thereon. The agreement by the testator was to pay a fixed sum, all of which was payable on or before the 1st of May, 1867, except as reduced by the deduction of the sums received by the plaintiff for the use of the rooms during the time. This balance, we think, comes within the principle of the ruling in Van Rensselaer v. Jewett (2 Comst., 135), as a sum for the non-payment of which, in pursuance of his contract, the defendant was, after May 1, 1867, in default, and liable to indemnify the plaintiff for such default, by the payment of interest. (See Adams v. Ft. Plain Bank, 36 N.Y., 255.) Whether the case was one where the jury might, in their discretion, allow interest, as damages for the default of the defendant, or one in which the plaintiff was entitled, as matter of law, absolutely to interest, is not, perhaps, necessary to decide, as the question was not distinctly raised. But we are inclined to think that the plaintiff was entitled absolutely to interest upon the sum due upon the 1st May, 1867: ( Dana v. Fiedler, 2 Kern., 40.)
There could be no recovery by the defendant, or set-off in his favor, arising out of the instrument put in evidence by him, dated November 3, 1866, for if it is to be regarded as a note or due bill, payable on demand, the statute of limitations had completely barred it, at the time of the commencement of this action. ( Herrick v. Wolverton, 41 N.Y., 581; Howland v. Edmonds, 24 id., 307; Mason v. Ins. Co., 13 Wend., 267; Newman v. Kettelle, 13 Pick., 418.)
The judge's refusal of the ninth request to charge that the defendant was entitled to recover its amount was therefore correct. It is insisted, however, that the judge erred, in leaving to the jury the question whether this instrument was a due bill, or a receipt, and instructing them that their finding, upon this matter, would bear very strongly upon the issue submitted to them, upon conflicting evidence, as to what the contract sued upon by the plaintiff really was.
The point is not without difficulty, but we have come to the conclusion that the judge was right in holding this paper open to explanation as to its consideration and the circumstances under which it was given. It is not, on its face, unequivocal or complete, as a promise to pay. Its language is, "received of D.M. Peyser five hundred dollars due on demand." It names no payee, not even the bearer, and would, in form, be as much a receipt as a note, and more a certificate of deposit, perhaps, than either. But evidence was given, without objection, from which the jury might find, and must be deemed to have found, that it was made when the testator paid the plaintiff the amount specified in it already due for board and rooms, and hence was without consideration as a due bill or note, but really intended by the plaintiff and taken by the testator merely as a receipt, or memorandum of money paid, on account.
The authorities, in my opinion, permit this explanation, and justify the course of the judge. The consideration of a promissory note is open to inquiry, as between the original parties; and, under this principle, upon the payment of money due, the giving of a note to the debtor by the creditor, upon such payment, it has been held, may be shown to have been intended as a receipt: ( Smith v. Rowley, 34 N.Y., 367; Slade v. Halstead, 7 Cow., 322; Bank of Troy v. Topping, 9 Wend., 273.) In the present case, the proof showing that the consideration of the note (if a note) was money paid to the maker by the payee as her due, the result would be the same whether it were called a receipt or a note. In either view, no cause of action could arise thereon to the payee, for the precise amount secured to be paid to him appears, at the same time, to have been due from and paid by him to the maker, and hence, whilethe debt owing to the maker is paid, no consideration for the note made by her remains. The other exceptions taken upon the trial have been examined, but do not appear to have any merit, or to require any comment.
The result is that there should be an affirmance of the judgment, were it not for an error appearing, in the computation of interest, in the judgment, as modified by the General Term. The interest on the principal sum of $464.28, from the 1st May, 1867, to the day of the trial, (the 28th February, 1877), seems to have been computed in the judgment, as finally entered, so that the total amount, as of March 5, 1877, the date of the original judgment, was $975.70, thus more than doubling the principal, in less than ten years. The judgment should be so modified as to reduce it to the sum of $464.28, and interest thereon to the 28th February, 1877, making the sum of $783.59; and, as so modified and entered, as of the date of its original entry, 5th March, 1877, affirmed with costs of this court.
All concur.
Judgment accordingly.