stated sum is made payable as liquidated damages for a [530] breach of some particular only of the agreement, then it may still be a question whether that feature of the contract will, notwithstanding the breach, and the claim or even payment of those damages, be of continuing obligation so as to admit of other breaches and successive claims and recoveries of the same stipulated damages. This question is not to be settled by any rule peculiar to the construction of such stipulations; it depends on the intention of the parties as ascertained by a fair interpretation of the contract. Where certain work is required to be done within a specified time it may be, and often is, agreed that a stated sum shall be paid for every week, month or other period during which its completion is delayed beyond that time. In such cases there is, by necessary implication, a continuing obligation as well as right to finish the work, though the stipulated time of performance has elapsed. These sums are recoverable and may be aggregated;1 and they are severally payable only as complete satisfaction for the delay of performance and not in lieu of it. § 298. Effect of stipulation upon right of action. It is not the effect of the ordinary contract which stipulates for damages to constitute the person who claims the benefit of the stipulation a tribunal to determine his rights thereunder. Hence, where a contractor has not performed according to their true intention and meaning; as liquidated or stipulated damages, but they have looked to the subjectmatter of the dispute, the situation and condition of the parties, and all the circumstances, together with the effects and consequences, as aids in arriving at the true meaning. Where a covenant is made concerning an existing cause of action, that cause may or may not be merged in the covenant. If it be merged, and the covenant be broken, the party is liable alone on the covenant, and not on the original cause of action. If it is not merged, then the covenant affords a new and additional cause of action and remedy upon it. In this latter case, if the amount named in the covenant or agreement be fixed and is intended by the parties to be paid in lieu of performance, then the recovery will be confined to that amount for the breach, as well as to his action on the covenant or agreement for his remedy, and cannot preserve his original cause of action. But when such intention does not appear, the sum named as stipulated or liquidated damages will be received and treated as a penalty; and the party may recover upon the original cause." 1 Fletcher v. Dyche, 2 T. R. 32; Pettis v. Bloomer, 21 How. Pr. 317; Hall v. Crowley, 5 Allen, 304. See ante, § 291; Weeks v. Little, 47 N. Y. Super. Ct. 1. his agreement the contractee may sue for the sum which the other has agreed shall be the damages; and where the amount is to be deducted from the payment last due, if such deduction has been made, the fact may be shown in bar of the action.2 § 299. Waiver of right to stipulated damages. If part performance of an entire contract is accepted a stipulation concerning the damages is waived. The waiver of the right to annul a building contract waives a claim to stipulated damages for either non-performance or delay by the contractors, in the absence of an express agreement to the contrary. There is no waiver of the right to such damages on the ground of part performance where the obligee performs for and at the request of the obligor; no consent that an existing breach shall be disregarded can be implied from the obligee's act." Where it is provided that a sum shall be deducted from the contract price for the performance of work for each week's delay beyond the time fixed, the right thereto is not waived because the amount is not deducted from the monthly estimates or claimed from month to month, if the contract is silent as to the time when the claim shall be asserted." If the defendant's right to retain the money which has been agreed upon as stipulated damages depends upon the failure of the plaintiff to perform and the termination of the contract for that reason, the fact that the contract is ended by consent does not waive the right to the damages. 1 Mitchell v. McKinnon, 65 Mich. 683; Lea v. Whitaker, L. R. 8 C. P. 70. 2 Mitchell v. McKinnon, supra; Stillwell v. Temple, 28 Mo. 156. 3 Wibaux v. Grinnell Live Stock Co., 9 Mont. 154. 4 Henderson Bridge Co. v. O'Connor, 88 Ky. 303, 331; S. C., 11 S. W. Rep. 18; 11 Ky. L. Rep. 146. 5 Parr v. Greenbush, 42 Hun, 232. 6 Texas, etc. Ry. Co. v. Rust, 19 Fed. Rep. 239, 245. 7 Wolf v. Des Moines Ry. Co., 64 Iowa, 380. CHAPTER VIIL INTEREST. § 300. Definitions and general view. 301. Interest by the early common law. 302. Interest in England legalized by statutes. 303. Interest at common law in America. 304. Agreements for interest. SECTION 1. GENERAL PROMISE TO PAY MONEY "WITH INTEREST." 305. It is liberally construed. 306. Law or custom fixes the rate. 307. Legal or stipulated rate applies from date. 308, 309. Whether same rate will apply after debt due. SECTION 2. 66 310. Agreements for interest from date until debt paid. SECTION 3. AGREEMENTS FOR MORE THAN LEGAL RATE BEFORE MATURITY. 313. Effect of usury found. 314. Who may take advantage of usury. 315. When contracts not void for usury. 316, 317. Computation under usury statutes. SECTION 4. AGREEMENTS FOR MORE THAN LEGAL RATE AFTER MATURITY. 318. Not usury, but penalty. 319. When debtor relieved in Illinois. SECTION 5. INTEREST AS COMPENSATION. 320. Scope of section. 321. Right not absolute. 322. Tacit agreements to pay interest on accounts. 323. Interest where payment unreasonably and vexatiously delayed. 324. Quantum meruit claim to interest. 325. Allowed on money lent. 326, 327. Allowed on money paid. 328. Quantum meruit claim to interest between vendor and purchaser. 329. Interest allowed from time when money ought to be paid. § 330. No interest on penalties nor statutory liability for riots. 331. When allowed on penalty of bonds. 332. Interest against government. 333, 334. Judgments bear interest. 335. No allowed on revival of judgment by scire facias. 336. Interest in condemnation proceedings. 337. Interest for taxes. 338. Infants liable for. 339. Allowed on sums due for rent. 340. Interest on damages for infringing patents. 341. Right to interest as affected by the marital relation. 342. Interest as between partners. 343. Interest on stockholders' statutory liability. 344. Allowed on annuities and legacies. 345. Interest on advancements. 346. On money due on policy of insurance. 347, 348. Not allowed on unliquidated demands. 349, 350. Interest on accounts. 351. When demand necessary. 352. When allowed on money had and received. 353. When allowed against agents, trustees and officers. 354. On money obtained by extortion or fraud. 355. Interest in actions for torts. SECTION 6. THE LAW OF WHAT PLACE AND TIME GOVERNS. 356. Importance of subject. 357. General rule as to contracts. 358. Rule as to notes and bills. 359. Bonds to the United States. 360, 361. Between parties in different states. 362-365. Where usury is involved. 366. The law of what place governs the rate of damages. 367. Allegation and proof of foreign law. 368-370. Effect of change in law of place of contract. SECTION 7. INTEREST AS AN INCIDENT TO THE PRINCIPAL 371. Interest due by agreement a debt. 372. Interest as damages accessory to principal. SECTION 8. INTEREST UPON INTEREST. 373. Compound interest. 374. Instances of interest on interest. 375. Interest on instalments of interest. 376. Separate agreements for interest. 377. Periodical interest after maturity of debt. 378, 379. Computation, application and effect of partial payments. SECTION 9. SUSPENSION OF INTEREST. § 380. Miscellaneous cases. 381. Where payments prevented by legal process. 382. Where war prevents payment. 383. Tender stops interest. 384. Tender not allowed for unliquidated demands. 385, 386. When tender may be made. SECTION 10. PLEADING. 387. How interest claimed in pleading. SECTION 11. INTEREST DURING PROCEEDINGS TO COLLECT A DEBT. 388. Interest on verdict before judgment. 389. On judgments pending review. Interest as an element of damage has already been sev- [531] eral times mentioned. But as such and otherwise it is an elementary topic deserving more particular treatment, and this seems the most appropriate place to introduce it. § 300. Definitions and general view. Interest is the compensation fixed by agreement or allowed by law for the use or detention of moneys, or for the loss thereof to the party entitled to such use. It is computed at a certain rate per centum by the year, unless stipulated for upon some other period of time. In a strict sense it is the compensation agreed to be paid for the use of money while the debtor has a right to retain the principal, and during a stipulated period of credit; in other words, before the principal is due and payable. A creditor is not entitled to be paid for the use of money owing to him before it is due unless by agreement, express or implied. And this should be for the prospective use of money; otherwise it has been held not to be strictly interest. But 1 Minard v. Beans, 64 Pa. St. 411; Thorndike v. United States, 2 Mason, 1; Beardslee v. Horton, 3 Mich. 560; Robinson v. Bland, 2 Burr. 1077; Rensselaer Glass F. v. Reid, 5 Cow. 587; Robinson's Adm'r v. Brock, 1 Hen. & M. 211; White v. Walker, 31 Ill. 422; Pollard v. Yoder, 2 A. K. 2 Marsh. 264; Brainerd v. Champlain 2 Daniels v. Wilson, 21 Minn. 530. The action was on a note given for a sum agreed upon for interest after the time for which it was computed |