recover interest which is necessary to a complete indemnity; that nevertheless the jury may, in their discretion, give him a complete indemnity, by including the amount of interest in their estimate of his damages; but that he may not give any evidence to influence their discretion, presents a series of propositions, some of which cannot be law. The case of Van Rensselaer v. Jewett' establishes a principle broad enough to include this case, and has freed the law from this as [614] well as other inconsistencies in which it was supposed to have become involved. The right to interest in actions upon contract depends not upon discretion, but upon legal right; and in actions like the present interest is as much a part of the indemnity to which the party is entitled as the difference between the market value and the contract price." 2

Nor is it an objection to the allowance of interest on the contract price of property sold, not paid when due, that there is a dispute between the parties as to the quantity and quality. In actions between vendor and purchaser for failure to fulfill the contract, or for breach of warranty where the measure of recovery is the difference between market price and contract price, or the market price of a warranted property and its actual value in a state or quality inferior to that which was warranted,― interest is to be added to the damages from the time of the breach. So where the action is on warranty of title. Money is due immediately, and carries interest from the date of the transaction, where there is a purchase of goods or other things for cash on delivery, or without any

12 N. Y. 141.

2 In Dana v. Fiedler, 12 N. Y. 40, 50. 3 Vaughn v. Howe, 20 Wis. 523. See Gammon v. Abrams, 53 Wis. 323. 4 Clark v. Dales, 20 Barb. 42; Hamilton v. Ganyard, 34 id. 204; Fishell v. Winans, 38 id. 228; Dana v. Fiedler, 12 N. Y. 40; Badgett v. Broughton, 1 Ga. 591; Enders v. Board Public Works, 1 Gratt. 372; Blackwood v. Leman, Harp. 143; Bicknall v. Waterman, 5 R. I. 43: Merryman v. Criddle, 4 Munf. 542; McKay v. Lane, 5 Fla. 268; Wolfe v. Sharpe, 10 Rich. 60; Buford v. Gould, 35 Ala. 265;

Marshall v. Wood, 16 id. 806; Mayo v. Purcell, 3 Munf. 243; Sohier v. Williams, 2 Curtis, 195. See Curtis v. Innerarity, 6 How. (U. S.) 146.

After demand made interest may be recovered for the breach of a contract to deliver goods, the price and quantity being agreed upon. Thomas v. Wells, 140 Mass. 517.

5 Rowland v. Shelton, 25 Ala. 217; Goss v. Dysant, 31 Tex. 186; Crittenden v. Posy, 1 Head, 311; Eggleston v. Macauley, 1 McCord L. 237. But see Ancrum v. Slone, 2 Speers, 594.

other time being agreed on. If a sale is made on a definite term of credit agreed on or implied from custom, interest is chargeable from the expiration of that term of credit. In [615] Wisconsin it was held that where a party's right to compensation under a contract is doubtful, is contested upon reasonable grounds, and a suit is required to determine the amount, interest will not be allowed for any time preceding such determination."

§ 349. Interest on accounts. On accounts which were not due when made, nor by the expiration of any term of credit, interest is allowed after demand in pais or by suit. A demand made by rendering the account informs the debtor what is claimed to be due from him and gives him the means of examining it in detail; and if no objection is made it becomes a stated account from that time a liquidated debt.”

1 Wyandotte, etc. Gas Co. v. Schliefer, 22 Kan. 468; Foote v. Blanchard, 6 Allen, 221; Pollock v. Ehle, 2 E. D. Smith, 541; Salter v. Parkhurst, 2 Daly, 240; Clark v. Dalton, 69 Ill. 521; Waring v. Henry, 30 Ala. 721; Smith v. Shaffer, 50 Md. 132; Atlantic Phosphate Co. v. Grafflin, 114 U. S. 492. Where there is a sale of goods and the price is not a gross sum the amount is liquidated by the terms of the invoice received and retained by the vendee. Ibid.

2Esterly v. Cole, 3 N. Y. 502; Kennedy v. Barnwell, 7 Rich. 124; Howard v. Farley, 3 Robt. 308; National Lancers v. Lovering, 30 N. H. 511; Moore v. Patton, 2 Port. 451; Raymond v. Isham, 8 Vt. 258; Dickinson v. Gould, 2 Tyler, 32; Leyde v. Martin, 16 Minn. 38; Foote v. Blanchard, 6 Allen, 221; Wiltburger v. Randolph, Walk. (Miss.), 20; Wyandotte, etc. Gas Co. v. Schliefer, 22 Kan. 468.

3 Shipman v. State, 44 Wis. 458; Tucker v. Grover, 60 id. 240. See Tyson v. Milwaukee, 50 id. 78.

4 Ledyard v. Bull, 119 N. Y. 62; De Carricarti v. Blanco, 121 id. 230; Heidenheimer v. Ellis, 67 Texas, 426;

Case v. Hotchkiss, 3 Keyes, 334; S. C., 3 Abb. (N. S.) 381; 1 Abb. Ct. of App. 324; Mygatt v. Wilcox, 45 N. Y. 306; White v. Miller, 78 id. 393; McIlvaine v. Wilkins, 12 N. H. 474: Barrard v. Bartholomew, 22 Pick. 291; Wheeler v. Haskins, 41 Me. 432; Hall v. Huckins, id. 574; Goff v. Rehoboth, 2 Cush. 475; Wood v. Hickox, 2 Wend. 501; Brainerd v. Champlain T. Co., 29 Vt. 154: Gammel v. Skinner, 2 Gall. 45; Van Husan v. Kanouse, 13 Mich. 303; Beardslee v. Horton, 3 id. 560; McCullum v. Seward, 62 N. Y. 316; Harrison v. Conlan, 10 Allen, 85; Adams Exp. Co. v. Milton, 11 Bush, 49; Palmer v. Stockwell, 9 Gray, 237; Hunt v. Nevers, 15 Pick. 505; Barrow v. Reab, 9 How. (U. S.) 366; Enders v. Board of Public Works, 1 Gratt. 389; Ruckman v. Pitcher, 20 N. Y. 9; McFadden v. Crawford, 39 Cal. 662; Young v. Dickey, 63 Ind. 31; Rend v. Boord, 75 Ind. 307; Marsteller v. Crapp, 62 Ind. 359.

5 Henderson Cotton Manuf. Co. v. Lowell Machine Shops, 86 Ky. 668, quoting the text; Walden v. Sherburne, 15 Johns. 409; Liotard v.

If a bill is presented and the debtor admits his indebtedness for the items thereof, subject to modification and correction. as to the sum charged, interest runs from that time on the items not subsequently objected to, and on the others from the commencement of the action. The accounts of a public officer are liquidated by being submitted to the authorities who have power to pass upon and approve them. The denial of interest on accounts rests more on the ground that there is a running credit than because the demand is uncertain and unliquidated. This latter objection may exist in particular cases; but accounts are not ordinarily unliquidated demands in the sense which prevents the allowance of interest. A demand is not to be assumed to be unliquidated and uncertain merely because it is in the form of an account. A running account implies an indefinite credit, and a [616] demand is necessary to place the debtor in default. Interest is properly due and recoverable on accounts when the items are not controverted nor unliquidated, and where the circumstances are such that the debtor is in default; - has unreasonably neglected to make payment. To put an account upon interest a demand is often necessary, but not on the ground of uncertainty. And after demand or commencement of suit accounts generally bear interest. The beginning of suit is a form of demand. Accounts are generally made up of items which represent money paid or advanced, goods sold and delivered or services rendered on request. They are, severally, demands on which interest may be claimed, though the price has not been fixed by agreement, and must be established by evidence."

Graves, 3 Cai. 226; Elliott v. Minott, 2 McCord, 125; Beardslee v. Horton, 3 Mich. 560; Van Husan v. Kanouse, 13 id. 303; Underhill v. Gaff, 48 Ill. 198; Richard v. Parrett's Heirs, 7 B. Mon, 379, 383; Barnard v. Bartholomew, 22 Pick. 291; Mygatt v. Wilcox, 45 N. Y. 306; Case v. Hitchcock, 3 Keyes, 334; Martin v. Silliman, 53 N. Y. 615. See Davis v. Smith, 48 Vt. 52.

Under the statute of Illinois interest is not recoverable on a verbal

contract unless there has been an unreasonable and vexatious delay of payment. West Chicago Alcohol Works v. Sheer, 104 Ill. 586.

1 Hand v. Church, 39 Hun, 303. 2 Stern v. People, 102 Ill. 540.

3 Ledyard v. Bull, 119 N. Y. 62; Cox v. McLaughlin, 76 Cal. 60; Rogers v. Yarnell, 51 Ark. 198.

4 See cases in note 4, ante, p. 728: 1 Am. Lead. Cas. 505; Kinard v. Glenn, 25 S. C. 590.

5 Id.; Smith v. Shaffer, 50 Md. 132.

3

An account is no more uncertain as to amount, in the ag gregate, than are its constituent items; and the fact that they are charged in account can have no adverse effect in respect to interest; entering them in a book has even been emphasized as though it were a circumstance having some influence in favor of interest.1 Where, however, the account or demand is for particulars, the value or amount of which cannot be measured or ascertained by reference to market rates, and are intrinsically uncertain, or the creditor's demand of payment is excessive or vague, a different case is presented.* Where a plaintiff merely asked the defendant for his pay for labor and materials, an account not being presented and never having been rendered, such request was not considered a demand which could aid any view of the case. But a demand of that kind would be sufficient where no information in respect to the amount of the claim need be imparted.* [617] Where no such uncertainty appears, and the subject of the account and the circumstances connected with it indicate that the delay has not been owing to the debtor's ignorance of the amount he had to pay, interest has been allowed after a reasonable credit." Nor will the want of a demand be any objection to the allowance of interest, where the debtor has absented himself from the state without calling for his account, and thereby prevented any demand being made upon him. In such a case interest was held to be allowable from the time of the latest transaction or service. A demand of more than is due may well be treated as insufficient to put the debtor in default; for it not only does not tend to liquidate the claim, but actually indicates that the plaintiff pre

1 Marsh v. Fraser, 37 Wis. 149. Compare Schmidt v. Limehouse, 2 Bailey, 276; Dillon v. Dudley, 1 A. K. Marsh. 65; Hunt v. Nevers, 15 Pick. 500; Dodge v. Perkins, 9 id. 368; Cannon v. Beggs, 1 McCord, 370; Scudder v. Morris, 1 Penn. (N. J. L.) *419; Wells v. Abernethy, 5 Conn. 222; Breyfogle v. Beckley, 16 S. & R. 264; Nelson v. Cartmel's Adm'r. 6 Dana, 7; Ringo v. Biscoe, 13 Ark. 5€3.

Cox v. McLaughlin, 76 Cal. 60. See Clark v. Clark, 46 Conn. 586.

3 Marsh v. Fraser, 37 Wis. 149. The debtor's request for delay is the legal equivalent of presentment. Babcock v. Hubbard, 56 Conn. 284. 306.

4 Gammel v. Skinner, 2 Gall. 45. 5 Wells v. Brown, 2 Penn. (N. J. L) 411; Wood v. Smith, 23 Vt. 706. 6 Graham v. Ex'r of Graham, 2 Keyes, 21; Graham v. Chrystal, 2 Abb. App. Dec. 263.

vents both adjustment and payment, or that the claim is intrinsically uncertain.1

§ 350. Same subject. Claims sounding in damages, and accounts where there has been no especial diligence on the part of the creditor, or long and vexatious delay on the part of the debtor, in the absence of a demand, present cases where interest may not be recovered as matter of law, but may be allowed in the name of damages by a jury in their discretion.2 The important inquiry is whether the debtor has done all the law required of him in the particular case. If he has, he is not liable for interest; if he has not, he must pay it as a [618] compensation for the non-performance of his contract."

The cases are very numerous in which it has been held or declared in general terms that interest is not allowed on open running accounts. But they were those where there had been no demand of payment or other circumstances to impose the immediate duty to pay; or else the claim founded on the

1 Hoagland v. Segur, 38 N. J. L. 230; Lusk v. Smith, 21 Wis. 28; Goff v. Rehoboth, 2 Cush. 475.

2 Frazer v. Bigelow Carpet Co., 141 Mass. 126; Eckert v. Wilson, 12 S. & R. 393; Anonymous, 1 Johns. 315; Constable v. Colden, 2 id. 480; Hagg v. Augusta Ins. & B. Co., Taney, 159; Wiltburger V. Randolph, Walk. (Miss.) 20; Huston v. Crutcher, 31 Miss. 51; Willings v. Consequa, Pet. C. C. 172; Gilpins v. Consequa, id. 85; Dox v. Dey, 3 Wend. 356; Stark's Adm'r v. Price, 5 Dana, 140; Morford v. Ambrose, 3 J. J. Marsh. 688; Dela ware Ins. Co. v. Delaunie, 3 Bin. 295; Amory v. McGregor, 15 Johns. 21: Kilderhouse v. Saveland, 1 Ill. App. 65; Chicago v. Allcock, 86 Ill. 384; Newson v. Douglass, 7 Harris & J. 417; Black's Ex'r v. Reybold, 3 Harr. (Del.) 528; Dotter v. Bennett, 5 Rich. 295; Feeter v. Heath, 11 Wend. 477; Tatum v. Mohr, 21 Ark. 350; Rogers v. West, 9 Ind. 403; Bare v. Hoffman, 79 Pa. St. 71; Richmond v. Dubuque, etc. R. Co., 33 Iowa, 422;

McNally v. Shobe, 22 Iowa, 49; Mote v. Chicago, etc. Ry. Co., 27 Iowa, 22; McNear v. McOmber, 18 Iowa, 12; Noe v. Hodges, 5 Humph. 103; Watkinson v. Laughton, 8 Johns. 213; Uhland v. Uhland, 17 S. & R. 265; Graham v. Williams, 16 S. & R. 257. See Wood v. Smith, 23 Vt. 706; § 321, ante.

3 Dodge v. Perkins, 9 Pick. 368. This case is referred to in Foote v. Blanchard, 6 Allen, 221, as correctly stating the law as held in Massachusetts. See Evans v. Beckwith, 37 Vt. 285; also Scroggs v. Cunningham, 81 Ill. 110.

4 Polhemus v. Annin, Coxe (N. J. L.), 176; Tucker v. Ives, 6 Cow. 193: Davis v. Walker, 18 Mich. 25; Clement v. McConnell, 14 Ill. 154; Beardslee v. Horton, 3 Mich. 560; Marsh v. Fraser, 37 Wis. 149; Henry v. Risk, 1 Dall. 286; Williams v. Craig, id. 338; Blaney v. Hendrick, 3 Wils. 205; Do Haviland v. Bowerbank, 1 Camp. 50; Smith v. Velie, 60 N. Y. 106.