John Dodge versus Thomas H. Perkins.
Where an agent, having received money, unreasonably neglects to inform his ero ployer of it, he is liable for interest from the time when he ought to have given information.
Interest is to be allowed where the law by implication makes it the duty of the party to pay over the money to the owner without any previous demand on his part.
In 1803 and 1804, D., a merchant in St. Domingo, indorses and transmits to J. & T. H, P., a mercantile house in Boston, consisting of J. P. and the defendant, four bills drawn upon the French government, requesting that they may be sent to France for collection. J. P. makes an entry of the bills in his own memorandum book, and states that the proceeds are to be remitted to London; but no entry is made on the regular account books of the house. The bills are duly sent to a banker in Paris, presented for payment and protested, and D. is put into direct correspondence with the banker, and he thereupon charges the banker in his books, and discharges J. & T. H. P. In 1806 D. dies, and afterward, in the same year, upon inquiries made by a person in France with a view to taking the business out of the hands of the banker, the banker replies that he is accountable only to J. & T. H. P., and upon notice of this interference, J. P., in the name of his house, writes to the banker that the bills belong to them, and have nothing to do with the concerns which may exist between D. and the person who had interfered. In 1815 the French government issue stock in payment of these bills and of two others belonging to J. & T. H. P., of which the banker gives them notice; and J. P. makes an entry in his memorandum book of the amount of stock for which each bill was liquidated, representing three of the four to be the property of D., and the fourth to be the property of a house of which J. P. had formerly been a member. The banker receives and retains the dividends on the stock until 1822, when, upon the death of J. P., the defendant, as surviving partner, directs the banker to dispose of the small amount in the French funds belonging to the late house and remit the amount, with the accumulation, to a banker in London. Upon this, the Paris banker remits the proceeds of the six bills, and the defendant, not recollecting that D. had any interest in them, credits his share to the account of profit and loss. The defendant draws bills upon the London banker for the amount in his hands, the rate of exchange on England being above par. In 1807, D.’s will was proved in New York, and in 1827 the executor took out letters of administration in this Commonwealth, having previously, in the same year 1827, satisfied the defendant that three of the bills belonged to the testator, and .having demanded the proceeds of the four bills with interest. It was held, that the agency of J. & T. H. P. ceased when the testator was put in direct communication with the Paris banker ; that it was resumed by the correspondence in 1806; that it was their duty, whether the agency were gratuitous or for a commission, to have made such entries in their books as would have shown that the testator was interested; that it was the duty of the defendant to have given notice, in 1822, of such interest, to some of the heirs of the testator, they being known to him; that having neglected so to do, he was liable for interest from that time; and that as originally the proceeds of the bills were to be remitted to London, he was liable to account at the rate of exchange on England at the time of the remittance.
*376This was an action of assumpsit for money had and received aQd money lent and accommodated, brought by the plaintiff, as executor of the last will of his brother, Unite Dodge. The general issue was joined, and also an issue upon a plea of tender made on May 15th, 1828, of $ 1807-91.
At the trial, before Wilde J., it appeared, that the defendant was the surviving partner of the house of James & Thomas H. Perkins, formed in 1792, and dissolved in 1822 by the death of James. Some time before the formation of this house, James lived and had a commercial house established at St. Domingo, which was broken up by the revolution there. Unite Dodge was a merchant at St. Domingo after the revolution, and a personal friendship existed between him and James Perkins. U. Dodge was employed to transact usual commission business at St. Domingo for J. & T. H. Perkins, and J. & T. H. Perkins were also commercial friends and agents at Boston of U. Dodge ; but, as was contended by the defend ant, without commission ; which, however, was not admitted by the plaintiff. The evidence on this point was contained in the accounts and correspondence.
The plaintiff introduced the following documents : —
Two letters dated the 1st and #14th of November, 1803, from U. Dodge to J. & T. H. Perkins, enclosing a bill of exchange for 15032,60 francs, another for 7224,60, and n third for 11000, all payable to U. Dodge, and drawn by Fienck officers in St. Domingo upon the French government. J. & T. H. Perkins were requested to transmit them to France for collection.
A letter from Hottinguer & Co., bankers m Paris, dated January 26th, 1805, to J. Perkins, at Paris, in which they mention that the bills had not been accepted, and that besides the bills above described they have a fourth bill for 9842,91 francs. Upon this last letter there was a communication from J. Perkins to the defendant. A letter from J. & T. H. Perkins to U. Dodge, admitted to be in the defendant’s handwriting, under date of June 6th, 1805, enclosing the letter from Hottinguer & Co. A letter from U. Dodge to Hottinguer & Co., dated February 21st, 1805, urging their attention to the bills remitted to them for collection on his account, and men*377tíomng the bill for 9842,91 francs as having been m the hands of Samuel Jones, of Bordeaux, and that he (Ü. Dodge) had left with T. H. Perkins duplicate orders of S. G. Ogden “ to deliver it to James Perkins or his order.” A letter from Hottinguer & Co. to U. Dodge of April 17th, 1805, in which they say that his note of his claims is conformable to the detail of the bills they had received from J. & T. H. Perkins on his account, the whole of which amounts to 43099,76 francs ; and they promise to act with zeal on his behalf, and desire him to transmit to them all the documents which may serve to support his claims.
Several letters from J. & T. H. Perkins, dated in 1804, tending to show that the business was transacted by the house, and with the personal knowledge of the defendant, and not by James Perkins alone, some of the letters respecting the bills being in the handwriting of the defendant.
A letter from the plaintiff, as executor of U. Dodge, to Hottinguer & Co., dated October 10th, 1826, inquiring about these bills, and their answer, dated November 30th, 1826, that in and before 1805, St. Domingo bills to the amount of 65399 francs had been sent to them by J. & T. H. Perkins, including, as was supposed, the bills in question ; that the French government had liquidated them in 1815 by an issue of public stock, yielding 2110 francs of rentes, and that the stock was afterward sold and the proceeds remitted according to the directions of J. & T. H. Perkins. Another letter from Hottinguer & Co. to the plaintiff, dated April 13th, 1827, in answer to one of February 17th, stating that they found the bills in question were indorsed by U. Dodge to J. & T. H. Perkins, and by them to Hottinguer & Co. and that they must account only with their immediate indorsers ; in support of which position they enclose an extract from a letter of September 8th, 1806, from themselves to Rougemont de Louenburg, (who in behalf of Messrs. Brun, Fréres, of Bordeaux, had inquired respecting the same bills,) as follows : — “You inquire in your letter of September 7th, concerning the negotiation or payment of the St. Domingo bills, with which we are charged by Mr. U. Dodge. We have indeed in our hands such bills bearing the signature of Mr. Dodge, but they were not remitted to us by him, and *378consequently we think that we have no account to render to Messrs. Brun, Fréres ” : — and an extract from a letter, dated December 19th, 1806, from J. & T. H. Perkins, as follows : — “We notice the demand which has been made by Mr. Rougemont de Louenburg, relative to a part of the St. Domingo bills. Your own good judgment has furnished the reply which this extraordinary requisition demands. We know nothing of those gentlemen, and as you very properly observe, have neither directly or through agents any account to render them. The bills in question were indorsed to our order, have become our property, and indeed in most instances were originally received for our account, and have nothing to do with the concerns which may exist between Mr. Dodge and Messrs. Brun, Freres.”
A letter dated January 24th, 1815, from Hottinguer & Co. to J. & T. H. Perkins, advising of the liquidation, by the French government, in public stock, of certain St. Domingo bills, — namely, four bills for the sums above mentioned, producing 1563 francs of rentes', and two other bills for 10C00 and 12200 francs, producing 547 francs of rentes,—and stating that they should await their orders as to the disposition of the stock.
A letter dated August 8th, 1822, from the defendant, as survivor of J. & T. H. Perkins, to Hottinguer & Co., requesting them to dispose of the “ small amount in the French funds,” belonging to the late house, and remit the amount, with the accumulation, to Samuel Williams, London ; and a letter from Hottinguer & Co. to the defendant, of September 12th, 1822, stating that they had made a sale and had remitted the proceeds, together with the amount of past dividends, being 2142Z. 14s. 9cl., and referring for details of the liquidation to their former letter of January 24th, 1815.
A letter from Hottinguer & Co. to the plaintiff, of July 31st, 1827, in which the proceeds of the four bills in question, remitted to Williams, are stated to have been 1601Z. 5s. 1 Id.
The memorandum book of James Perkins for the years 1812-1816, referring to Hottinguer & Co.’s letter of January 24lh, 1815, and stating the manner in which the several bills had been liquidated, and also stating three bills for 31000, *3797225,25 and 15032,60 francs to be on account of U. Dodge, two other bills for 12200 and 10110 francs to be on account of the brig Dove; and against the bill for 9842,91 francs is written “ P. B. & Co.,” supposed to mean Perkins, Burling & Co., the old St. Domingo house of which James Perkins was a member.
An account current book of J. & T. H. Perkins, in which an account is opened with the French 5 per cents in the hands of Hottinguer & Co. for the proceeds of certain St. Domingo bills for account of the brig Dove, (in which Dodge had no interest) valued at 1566,66. The entry is under date of December 8th, 1815, and refers to J. Perkins’s memorandum book and Hottinguer & Co.’s letter of January 24th, 1815.
The account current book of T. H. Perkins, as vquidator of J. & T. H. Perkins, showing that under date of November 9th, 1822, the account opened in the books of J. & T. H. Perkins with the French 5 per cents, was transferred into this book of the liquidator and there stood charged with the sum of $ 1566-66, and that on March 10th, 1823, this account was credited “ by S. Williams for Hottinguer & Co.’s remittance $ 9523-27,” and in November 1823, was charged “ to J. & T. H. Perkins’s final account for balance $7956-61,” which balance, it was admitted, went to the account of profit and loss.
It appeared from the defendant’s books, that he drew on Williams on November 4th, 1822, for 2892Z. 14s. 9d., and that the amount of part of the drafts, viz. 2142Z. 14s. 9iZ. or $ 9523-27, was credited in the account of the French 5 per cents, and that the drafts were sold in New York soon after they were drawn, at a premium of 12-| per cent. It was testi fied that the exchange on Paris was at 17| cents the franc on the 31st of October, 1822.
The plaintiff also- introduced the will of U. Dodge appointing the plaintiff his sole executor, proved in New York on January 28th, 1807, and letters testamentary of that date issued to the plaintiff; also letters of administration, with the will annexed, issued to the plaintiff on April 9th, 1827, in this county.
It was testified that the plaintiff had lived in Salem, in the county of Essex, several years previous to 1822 ; that in that year he removed his family to Boston • that in October of the *380same year he went to Hayti ; that in June., 1823, he returned to the United States ; that in November following he again went to Hayti, whence he finally returned in 1825 ; that the plaintiff did business at Hayti as one of the firm of Marpie, Dodge & Co., and from 1822 to 1825 the house was in constant correspondence with J. & T. H. Perkins & Sons. It also appeared that the plaintiff’s mother lived in Boston, and that in 1802, 1803 and 1804, the defendant made payments to her on account of U. Dodge, and that she died in Boston in 1822.
The plaintiff introduced also a written demand made by himself on the defendant the 10th of April, 1827, for 35,993 francs at 18f cents, with interest from September 12th, 1822, and allowing a commission of 5 per cent, —with the defendant’s answer in writing, of April 12th, admitting the claim for principal but not for interest, and stating that he was entitled to the commission, but might waive it.
The plaintiff also presented a statement of his account against the defendant, claiming a balance of $ 2413-13.
The defendant put in evidence the following documents.
A letter from J. & T. H. Perkins to Hottinguer & Co., dated November 4th, 1803, showing that they had St. Domingo bills of their own, before that time, in the hands of Hottinguer & Co. for collection.
James Perkins’s memorandum book of 1804, containing particular minutes respecting the receipt and transmission of three of U. Dodge’s bills, stating that they are to be collected and the proceeds to be remitted to S. Williams. But it did not appear that there was any entry respecting them in the regular account books of the company, all of which were offered in evidence.
A letter from U. Dodge to J. Perkins in France, dated November 28th, 1804, showing that the fourth bill, for 9842,90 francs, was made payable to J. Perkins or order, and not to the house of J. & T. H. Perkins.
An entry in U. Dodge’s account book, dated June 10th, 1805, charging Hottinguer & Co. and crediting J. & T. H. Perkins with the four bills ; the entry referring to the letter of Hottinguer & Co. to James Perkins, dated January 26th, 1805, and *381the letter of the defendant to TJ. Dodge, dated June 6th, 1805, enclosing the same.
James Perkins’s memorandum book showing that he returned from Europe in June, 1806.
A letter from Hottinguer & Co. to J. & T. H. Perkins, dated September 11th, 1806, stating that the amount of government bills sent to them by J. & T. H. Perkins, and remaining uncollected, was 65399,76 francs, and that their object in writing at that time was to communicate the letter before mentioned from Rougemont de Louenburg, of September 7th, 1806, inquiring what was the state of the bills with which they were charged by U. Dodge, intimating at the same time that the design of Brun, Freres, was to take the business out of the hands of Hottinguer & Co. ; also the answer of September 8th, 1806, saying that they had no account to render to Brun, Freres, and adding that it was well known that the bills could not be negotiated at that time at 90 per cent discount.
The answer of J. & T. H. Perkins, of December 19th, 1806, before mentioned.
A letter from J. & T. H. Perkins to Hottinguer & Co., of December 2d, 1815, in which they say, “ We presume the present time would not be favorable to realize the national paper belonging to us ; you will therefore hold it for the present, subject to our future instructions.”
Another letter, from the same to the same, dated May 23d, 1816, being the last which was written during the continuance of the firm of J. & T. H. Perkins, and containing no allusion to the bills.
Hottinguer & Co.’s account current, enclosed in their letter of September 12th, 1822, in which account J. & T. H. Perkins are credited with dividends received on 2110 francs of rentes, and the proceeds of sale of the same amount, and charged with commissions, &c. and the remittance to S. Williams of 2142Z. 14s. 9d. for the balance of the account.
A letter from the defendant to Hottinguer & Co., dated November 23d, 1822, acknowledging the receipt of the account and notice of the remittance.
A letter from Hottinguer St Co. to the defendant, dated April 13th, 1827, acknowledging the receipt of the defendant’s *382letter of November 23d, 1822, and stating that of the six bills which had been liquidated, four, amounting to 43099,76 francs, proceeded from U. Dodge, and referring. to the advices contained in their letter of January 24th, 1815 ; also stating that James Perkins, when in France in 1805, had informed them that these bills were to be collected for account of Dodge, and had caused them to enter into direct communication with Dodge on the subject, in consequence of which the plaintiff had called upon them respecting it. They enclose, in order to facilitate a settlement between the plaintiff and the defendant, a copy of the account sent in their letter of “ September 14th ” [12th], 1822, with the addition of a memorandum, showing that of the sum remitted to S. Williams, 1601Z. 5s. lid. proceeded from Dodge’s bills.
A letter of June 24th, 1827, from the detendant to Hottinguer & Co., stating that as soon as the plaintiff’s claim was presented, the defendant offered to pay the amount, but that the plaintiff refused to receive the same unless interest were allowed from the time of the remittance to S. Williams, to which the defendant would not assent, because the plaintiff, the executor, had never made the demand and had never been qualified to receive payment and give a valid discharge until February, 1827, and because the funds lay in the defendant’s hands as liquidator of J. & T. H. Perkins, and would have been paid over on the day they were received, had the defendant known that the plaintiff had an interest in, and was entitled to receive them ; authorizing Hottinguer & Co. to furnish the plaintiff with copies of the correspondence between Hottinguer & Co and the defendant’s house, and stating the defendant’s willingness to furnish the plaintiff with the originals from Hottinguer & Co. and copies from the letter books of J. & T. H. Perkins ; stating that the defendant was unable to find the letter referred to by Hottinguer & Co. of January 24th, 1825, and requesting them to send him a copy ; also stating that the transaction being of old date, and mainly under the charge of James Perkins, the defendant had lost sight of it, and that when the letter of Hottinguer & Co. of September 12th, 1822, came to hand and advised of the remittance to London, he had no idea that there was any interest involved, other than that of J. & *383T. H. Perkins, and that he remained under this impression, until the plaintiff called upon him in February 1827 ; that he then offered to pay the plaintiff such proportion of the sum re-mined as 43099,76 francs bore to the aggregate sum ol 65399,71 francs, supposing that all the bills were liquidated at the same rate, but that in consequence of the statement in their etter, that the plaintiff’s proportion was 40833 francs, he should settle with him accordingly.
The answer of Hottinguer & Co., of July 3Cth, 1827, enclosing the copy of the letter of January 24th, 1815.
A letter from Samuel Hubbard to the defendant, of April 25th, 1827, requesting, in behalf of the children of Unite Dodge, that the defendant would not pay over the amount in his hands to the plaintiff, until he should hear further from Hubbard.
A receipt, dated December 3d, 1827, signed by the plaintiff as executor, for $ 6369-82, paid by the defendant with Hubbard’s consent. This sum was the amount of the proceeds of three of the bills of U. Dodge, estimating the amount remitted by Hottinguer & Co. at 19¿ cents the franc, being an advance on the par value thereof, and intended to cover the rate of exchange between Boston and Paris at the time of the remittance. It was admitted that on May 15th, 1828, the defendant tendered to the plaintiff, in full satisfaction of his further claim, the sum of $ 1807-91, being the amount remitted by Hottinguer & Co. for the proceeds of the fourth bill, (marked “ P. B. & Co.” in James Perkins’s memorandum book,) estimating the franc as above, together with interest from April 10th, 1827, when the plaintiff took out letters of administration here, up to the times of payment and lender; and this sum was paid into court in this suit.
John Capen, a witness ( i the part of the defendant, stated, that he had been the bookkeeper of J. & T. H. Perkins, J. & T. H. Perkins & Sons, and Perkins & Co. successively from 1811 until about a year previous to the trial; that upon the death of James Perkins, in 1822, the accounts standing open in the books of J. & T. H. Perkins were transferred to the books of the defendant as liquidator ; that he knew of no other accounts or entries on the books relating to the French *384stocks or St. Domingo bills, or any similar entries, than were exhibited ; that he had made diligent search for lettei, or documents on the subject, and could find no others ; that James Perkins, during his life, and not the defendant, attended to the business of accounts ; that after the death of James, the defendant had the general direction of the accounts ; that the witness recollected the transaction of 1822, but that he recollected nothing of any conversation at the time, about the over-plus remitted by Hottinguer & Co. On cross-examination, he said that be had examined the old books, in opening the books of the defendant as liquidator ; that at the time of the charge of $1566-66 to the French 5 per cents, bills receivable were credited with that sum ; that James Perkins kept the memorandum books which were produced, and used to make minutes in them for company matters, and that entries in the company’s books were sometimes made therefrom ; that the memorandum books which J. Perkins had in use, commonly lay open on his desk; that nothing was said to the witness about the plaintiff’s interest in the funds received from Hottinguer & Co. until after the plaintiff had made his claim, — when the witness was directed to inquire into it; that no surprise was expressed to the witness, at the amount; that his impression was, that the defendant himself directed the surplus to be carried to profit and loss ; that the witness did not think it usual, when a sum was received, not belonging to any particular account in the books, to carry it directly to profit and loss ; that there was no suspense account in their books, and that they were then closing their books ; that the witness bad examined the papers at the store for the letter of January 24th, 1815, but could not find it ; that James Perkins frequently carried papers home, and usually brought them back again ; and that the witness had not searched at .Tames Perkins’s house for the papers.
Samuel Cabot, another witness called by the defendant, testified that he was a member of the house of J. & T. H. Perkins & Sons, and not of the house of J. & T. H. Perkins, but that at the death of James Perkins, the accounts of that house passed through his hands, and that he settled most of them ; that all foreign correspondents who appeared to have property of the house in their hands, were ordered to dispose of it and *385remit the balance of their accounts to S. Williams, London ; that finding the balance remitted by Hottinguer & Co. larger than was anticipated, he had conversations with the defendant about it, and was directed to examine into the subject, and that he did investigate, but was unable to trace the property, though he took great pains ; and that after some time he ordered the amount to be carried to profit and loss ; that when the plaintiff’s claim was made, it showed satisfactorily where the surplus might have come from; that some time after this he found James Perkins’s memorandum book in a drawer among some waste papers, and there found a memorandum which explained the bills ; that James Perkins was in the habit of keeping these memorandum books, and that the entries were considered as his own memorandums, though chiefly of company affairs ; that these books were not preserved and filed among the regular books of entry of the house ; that the defendant had very little to do with the books or the details of business ; that James Perkins usually attended to the accounts and the European correspondence ; that the defendant attended more particularly to the China business ; that the witness was in partnership with the defendant in the lifetime of James Perkins, and had been ever since ; that he had frequently written and received letters and transacted business which he had not thought it necessary to communicate particularly to the defendant ; and that he believed the correspondence with Marple, Dodge & Co. was carried on wholly by himself. Upon cross-examination, he said that in his investigation he had not looked at the waste.book or journal; that the leger and account current books contained all that was in the books of first entry, and that it was not usual to go back to them, if the entry in the leger or account current book was intelligible without; that he believed he did not look at Hottinguer & Co.’s letters; that he looked into Hottinguer & Co.’s account in the account current book ; that he could not say that he had seen any reference to Hottinguer & Co.’s letter of January 24th, 1815, or to James Perkins’s memorandum book ; that he had not expected to be called as a witness and had not refreshed his recollections at all, and could not state exactly what examination he did make, but that he spent a good deal of time about it; that his object *386was to find whence the surplus beyond the amount charged in ^ kooks to the French 5 per cents arose, in order to know to wha: account it belonged and to direct how it should be entered ; that finding an entry which referred to the account of the brig Dove, he went into that, but found it closed and the balance carried to profit and loss ; that he could find no explanation in the account of Hottinguer & Co. ; that finally he did satisfy both himself and the defendant, that there was no account opened in the books to which this surplus could belong; and that they concluded it belonged to some of the old St. Domingo accounts, of which a large amount had been carried to the debit of profit and loss.
The jury found a verdict for the plaintiff for the whole of his claim deducting a commission of 5 per cent on $7174'10, the amount of the principal; subject however to the opinion of the whole Court.
The defendant moved to set aside the verdict, chiefly on the grounds that he was not chargeable with interest on the amount in his hands, for any time previous to the plaintiff’s first demand after he had taken out letters of administration in this Commonwealth, nor with the premium of exchange on London instead of Paris.
Shaw and W. H. Gardiner, supported the motion.
There are two classes of cases in which interest is allowed ; one, where it accrues in pursuance of a contract, express or implied; the other, where it is given as damages and in the nature of a penalty for a default.
The mere receipt of the money ot another person, where there is no contract and no demand made of the money, does not subject the receiver to the payment of interest. Walker v. Constable, 1 Bos. & Pul. 306 ; De Bernales v. Fuller, 2 Campb. 426 ; Calton v. Bragg, 15 East, 223 ; Gibbs v. Bryant, 1 Pick. 121; Lee v. Munn, 8 Taunt. 45 ; Walker v. Bradley, 3 Pick. 261 ; De Havilland v. Bowerbank, 1 Campb. 50 ; Shaw v. Picton, 7 Dowl. & Ryl. 201 ; Higgins v. Sargent, 2 Barn. & Cressw. 348. In regard to interest given as increase of damages, they cited Atkins v. Wheeler, 5 Bos. & Pul. 205, and Day’s note ; Arnott v. Redfern, 3 Bingh. 353 ; Reid v. Rensselaer Glass Factory, 3 Cowen, *387436 ; S. C. 5 Cowen, 609 ; Adams v. Cordis, 8 Pick. 260; Fowler v. Shearer, 7 Mass. R. 14 ; The People v. Gasherie, 9 Johns. R. 71; Wood v. Robins, 11 Mass. R. 504; Weeks v. Hasty, 13 Mass. R. 218 ; Mason v. Waite, 17 Mass. R. 560 ; Winslow v. Hathaway, 1 Pick. 211.
In the case at bar there was no contract to pay interest. The money came into the defendant’s hand in 1822 accidentally. In order to make him liable for interest, a demand must be made upon him by a person competent to give a discharge. No such demand was made until after April 10th, 1827, when letters of administration were granted in this Commonwealth to the plaintiff, and interest from that day has been paid. Stevens v. Gaylord, 11 Mass. R. 263 ; Cutter v. Davenport, 1 Pick. 86 ; Trecothick v. Austin, 4 Mason, 32. The cases of executors, trustees, &c. being held liable for interest, stand on different ground ; the duty of their office requires them to take active measures, and they are not to wait to be put in motion by the party in interest. Younge v. Combe, 4 Yes. 101 ; Browne v. Southouse, 3 Bro. C. C. 107; Schieffelin v. Stewart, 1 Johns. Ch. R. 620 ; Mason v. Roosevelt, 5 Johns. Ch. R. 534.
The defendant is not liable to pay interest as for a wrongful detention of the money. About the time when the plaintiff took out letters of administration, the children of Unite Dodge gave a caveat to the defendant against paying over the money to the plaintiff. They might have appealed from the decree appointing the plaintiff administrator, and if upon an appeal the decree had been reversed, the defendant could not have resisted the claim of another administrator. When the defendant paid into court the money supposed to be due on three of the bills, the title to the fourth was in dispute, the evidence in the hands of the defendant at that time being, that the bill was the property of Perkins, Burling & Co. The doubt being removed by subsequent evidence, the amount of that bill was tendered; which was sufficient to stop the running of interest. Williams v. Storrs, 6 Johns. Ch. R. 353; Suffolk Bank v. Worcester Bank, 5 Pick. 106.
It will be urged that there was negligence on the part of the defendant. Before this can be determined, a preliminary ques*388tion arises, what was the nature of the agency. The evidence shows that the business was transacted by James Perkins, though in the name of his house, as the friendly agent of U. Dodge, without an expectation of compensation. No commission has been claimed, until since the commencement of this controversy. The bills were entered only in J. Perkins’s own memorandum book.
If the defendant was an agent, as well as James Perkins, so soon as a direct correspondence took place between U. Dodge and Hottinguer Sr Co. in 1805, any agency on his part was at an end ; and accordingly U. Dodge discharges J. & T. H. Perkins in his books.
Nor was the agency renewed by the correspondence relating to the officious intervention of Brun, Fréres. Hottinguer & Co. send a cautious answer to an impertinent question ; for if Brun, Fréres, had had authority to interfere, they would have produced it. The letter of J. Perkins was intended to prevent the property from being improperly taken out of the hands of Hottinguer & Co. U. Dodge was deceased at that time, and no person had taken out letters testamentary in this country. That letter could not alter the liability of Hottinguer & Co., more than the letter of any stranger.
But admitting that the agency was resumed by J. & T. H. Perkins, the defendant has not been guilty of negligence. It is said he should have given notice of the receipt of the money in 1822. There was no person in this State to whom it was his duty to notify that fact. Public notice of an administration in another State is not even constructive notice to out citizens. The defendant did not know that the plaintiff was entitled to the money, and it was rather the duty of the plaintiff to call upon the defendant, as he had information sufficient to put him on inquiry ; whereas the defendant was ignorant whence the overplus of the French funds arose. Hemenway v. Hemenway, 5 Pick. 389 ; Lawler v. Keaquick, 1 Johns. Cas 174 ; Lord Chedworth v. Edwards, 8 Ves. 48 ; Topham v. Braddick, 1 Taunt. 571 ; Clark v. Moody, 17 Mass. R. 145 ; Selleck v. French, 1 Connect. R. 32 ; Child v. Devereux, 1 Murphey, 398. If the defendant was in fault, yet as the plaintiff likewise was negligent, interest cannot be recovered *389De Havilland v. Bowerbank, 1 Campb. 50 ; Dexter v. Arnold, 3 Mason, 289 ; Walker v. Bradley, 3 Pick. 261 ; Hardwicke v. Vernon, 14 Ves. 599 ; Boddam v. Ryley, 1 Bro. C. C. 239 ; Merry v. Ryves, 1 Eden, 7 ; Morgan v. Morgan, 2 Dickens, 643; Barrington v. O'Brien, 1 Ball & Beatty, 180. A. party is not liable for interest, where he receives money as his own, under a mistake of facts. Bruere v. Pemberton, 12 Ves. 386 ; Brown v. Campbell, 1 Serg. & Rawle, 176 ; Jacobs v. Adams, 1 Dallas, 52; Gittins v. Steele, 1 Swanst. 199 ; Walker v. Bradley, 3 Pick. 261.
It is said the defendant was negligent in not making a more thorough examination of his books and papers in 1822. Had he supposed another person to be interested in the property, the objection would have weight. But the search was only for his own convenience, with a view to make the proper entries in his own books. Cabot proceeded so far in his investigation as to have reason to think that the surplus in question belonged to some of the old St. Domingo accounts, of which a large amount had been carried to the debit of profit and loss, and he of course credits this surplus to profit and loss.
It is said there was negligence in not giving notice in 1815. But no money was received at that time, and no person was legally entitled to notice.
Negligence is also imputed to the defendant, in not having entries made in his books which would have explained the transaction. According to mercantile usages and the system of accounts adopted among merchants, the reception and transmission of Dodge’s bills for collection in 1803 and 1804, afforded no ground for an entry in the books of J. & T. H. Perkins ; and if so, then when the money proceeding from these bills was received in 1822, there would be no account open in their books explaining its origin, and to which the amount so received should be credited. All that is done by a mere collecting agent, is to make a memorandum, in some convenient book, of the notes or drafts lodged with him for collection. He enters nothing of them in his account book, until they are turned into matter of account. The house of J. & T. H. Perkins had no book for such matters, because they had no transactions similar to this with Dodge. They were not commission mer*390chants, but general merchants doing business for themselves. All was done therefore, that could be done in the way of account, when J. Perkins, who had charge of the business, made an entry of these bills in his own memorandum book.
The defendant is liable, at most, only at the rate of exchange in 1822 between Boston and Paris, and not at that between Boston and London. So soon as the stock was sold, the proceeds were mingled with his own funds and passed to his credit ; and from that moment he became liable to the representative of U. Dodge, for his proportion. If Hottinguer & Co., and still more, if Williams had failed before the defendant received the money, the loss would have fallen on the defendant. Wren v. Kirton, 11 Ves. 377 ; Massey v. Banner, 1 Jac. & Walk. 241 ; 1 Hovend. on Fr. 156 ; Taber v. Perrot, 2 Gallison, 565. Perhaps the defendant should account only at the par of exchange. Adams v. Cordis, 8 Pick. 260. But if the plaintiff claims the profits made by the defendant’s negotiations, he must relinquish his claim to interest. Heathcoke v. Hulme, 1 Jac. & Walk. 122.
S. Hubbard and Saltonstall, for the plaintiff,
cited to the point, that the executor might have given a valid discharge without taking out letters of administration in this Commonwealth, Commonwealth v. Griffith, 2 Pick. 11 ; Atkins v. Smith, 2 Atk. 63 ; Doolittle v. Lewis, 7 Johns. Ch. R. 45 ; and to show that the defendant was liable for interest, they cited Rapelie v. Emory, 1 Dallas, 349 ; Dilworth’s Lessee v. Sinderling, 1 Binney, 494 ; Commonwealth v. Crevor, 3 Binney, 123; Brown v. Campbell, 1 Serg. & Rawle, 179 ; Campbell v. Mesier, 6 Johns. Ch. R. 24 ; Rensselaer Glass Factory v. Reid, 5 Cowen, 596 ; Pearse v. Green, 1 Jac. & Walk. 135; Parnell v. Price, 14 Ves. 503; Anonymous, 1 Johns. R. 315 ; Beals v. Guernsey, 8 Johns. R. 446 ; Amory v. M'Gregor, 15 Johns. R. 38.
Putnam J.
delivered the opinion of the Court. The questions arising in this case are, first, whether the defendant is liable to pay interest from the time when he received the money, to the time when the plaintiff, as the executor of Unite Dodge deceased, demanded payment.
*391And if so, then, secondly, upon what amount the interest shall be calculated.
The action is upon an implied assumpsit, and the judgment sounds wholly in damages for the non-performance of the contract or undertaking. If the interest is not included in the contract, it cannot be given. If it is included, then it should make up a part of the judgment.
This rule applies as well to implied, as to express contracts, and to verbal, as well as to written promises. Where there is an express promise in writing to pay interest, the amount of the damages becomes a mere matter of calculation. But whether there has been an implied promise to pay interest, often depends upon the usages of trade and dealings between the parties and other circumstances, which explain the duty undertaken to be performed. And if upon the whole matter the defendant has not performed it, interest is to be assessed as damages for the breach. If it were not so, the remedy would be incomplete. Those usages of trade, and other facts and circumstances, and the dealings between the parties, are proper subjects for the consideration of the jury. But when they are agreed by the parties or found by the jury, the law arising from them is to be declared by the Court.
If, for example, one should promise in writing to pay money to another on a day certain, and fail to do so, interest would be added to the amount of damages, notwithstanding the writing did not express it. It would be added as a compensation for the non-performance of the contract. If there were a verbal contract to the same effect, the same rule of damages should be followed. The case of Robinson v. Bland, 2 Burr. 1086, is a leading one upon this point. It was before the revolutionary war, and was determined by Lord Mansfield and his able associates, upon sound principles. It was for money lent in France, for the security of which a bill of exchange was drawn payable at short sight in England. The bill of exchange however was avoided, because it was given for money lent at the *392time and place of gaming. The contract raised by the law, to Pa7 f°r the money lent, was held to be good, although, the security was void. Upon the facts found, the court were to determine whether interest should be payable ; and they held, that it was to be inferred from the facts proved, that the money was to be paid in England at a certain time, and that interest should be added, as part of the damages, up to the time of the judgment.
There the borrower, Sir John Bland, died, and there was no express promise concerning interest. The money was not paid. Lord Mansfield said, “ Although this be nominally an action for damages, and damages be nominally recovered in it, yet it is really and effectually brought for a specific performanee of the contract. For where money is made payable by an agreement between parties, and a time given for the payment of it, this is a contract to pay the money at the given time, and to pay interest for it from the given day, in case of failure of payment at that day.” Wilmot J., in a very able opinion, said, (p. 1083,) the damage was the whole interest due upon the money lent, from the time of its being payable, up to the time of signing the judgment. Interest was added to the principal sum accordingly, and the judgment was for the aggregate sum, as damages for the breach of the contract.
If the money is not paid at the day stipulated, the debtor is in fault. He detains the money of his creditor. So if the money is payable upon demand, interest is allowable after a demand, by writ or otherwise. The law supposes the party to be in fault, if he does not pay upon demand.
The great inquiry is, whether the party has done all that the law required of him in the particular case ; whether acting on his own account, or as agent, executor, administrator, guardian or trustee for others. If he has, he is not accountable for interest ; if he has not, he is accountable for it as a compensation for the non-performance of his contract.
There are cases where the law requires the party to pay over money which he has acquired, immediately, without waiting for any demand or request of payment; as where he has obtained it by fraud. The promise which the law implies, extends as well to the interest as to the principal sum, so wrongfully ac* *393qu red and detained. In Wood v. Robbins, 11 Mass. R. 506, the party was originally, and continually in fault.
The same rule applies where the party received the money lawfully for a particular purpose, and misapplied it; as in Fowler v. Shearer, 7 Mass. R. 14, where the defendant (who was au attorney) should have indorsed it on a note which he held for collection, but did not, and in consequence of his neglect the promisor was obliged to pay the whole of the note. It was held that the attorney was accountable for interest, as well as principal, and Parsons C. J. thought that the interest should commence from the time of payment. That was an action for money had and received.
The same rule is recognized in Hughes v. Kearney, 1 Sch. & Lefr. 134, where the vendee retained part of the purchase money to pay off incumbrances, but did not. It was determined that it should carry interest, because there was a misappropriation.
The same rule should apply where a party has acted as agent to render a reasonable account, but has omitted to do so for an unreasonable time. Interest should be calculated from the time of the breach of his undertaking. Crawford v. Willing, 1 Dallas, 349, note.2
If the party were a stakeholder without fault, he. would not chargeable, notwithstanding the money were in his hands several years. Lee v. Munn, 8 Taunt. 45.
S. P. in Williams v. Storrs, 6 Johns. Ch. R. 353. But “if the agent had received the money,” said the Chancellor, “ and neglected for a long time to inform his principal of the fact and wilfully suffered him to remain in ignorance that his *394debtor had paid to the agent, there would be equity in requir *n§ the agent to pay interest, for here would be a case of default, and breach of duty.”
A factor is in duty bound to account to his principal, in a reasonable time, without any demand, in cases where a demand would be impracticable or highly inconvenient. He would be held, according to the course of business, to give his principal information of his progress in the transaction, and if he should neglect unreasonably to forward his account to his employer, this negligence would be a breach of his contract and subject him to an action. Clark v. Moody, 17 Mass. R. 149 ; Lady Ormond v. Hutchinson, 13 Ves. 53 ; Earl of Hardwicke v Vernon, 14 Ves. 504.
It is the settled law of New York, that interest is to be allowed for money received or advanced for the use of another, “ after a default in payment.” Campbell v. Mesier, 6 Johns. Ch. R. 24.
So if the agent had engaged to invest the money, but omitted to do so, he is to answer for the interest from the time he should have invested. Brown v. Southouse, 3 Bro. C. C. 107 ; The People v. Gasherie, 9 Johns. R. 71.
There are some late English cases, which would seem to be contrary to the rule requiring interest after non-payment at a day certain.
Thus in Gordon v. Suan, 12 East, 419, which was for the price of goods sold and delivered payable on a certain day, Lord Ellenborough said, that “ the giving of interest should be confined to bills of exchange and such like instruments.” No reasons are given, and it is not easy to see why the same rule of damages should not be applied in that case, as in the' case of any other contract for money to be paid at a certain day.
In Higgins v. Sargent, 2 Barn. & Cressw. 348, the restriction of interest to mercantile securities was recognized, and *395
Abbott C. J. stated the rule to be established, that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest, or where such promise is to be implied from the usage of trade or other circumstances.
Now I have no objection to this general rule, but I very much doubt the application of it according to the case of Higgins v. Sargent. That was on a policy upon the life of one Burton, payable in six months after proof of his death. It is difficult to perceive a good reason why interest should not have been given after the money ought to have been paid according to the promise. That, we have seen, was the principle adopted by Lord Mansfield and his associates, where the promise was raised by implication of law. A fortiori would it seem to apply to an undertaking in writing. Lord Thurlow, in Boddam v. Ryley 1 Bro. C. C. 239, and 2 Bro. C. C. 2, after noticing many cases, comes to the conclusion, that “ all contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid.”
We have no statute regulating this subject, and none is ne cessary. Upon the principles of the common law,' we think it clear that interest is to be allowed, where the law by implication makes it the duty of the party to pay over the money to the owner without any previous demand on his part. Thus, where it was obtained and held by fraud, interest should be calculated from the time when it was received. So, where there has been a default of paying according to agreement, express or implied, to pay on a day certain, or after demand, or after a reasonable time.
The nature and extent of the undertaking must depend upon the facts proved in each particular case. But when it is ascertained at what time the money should have been paid, the law raises a promise to pay damages for the detention after the breach of the contract. For it is the essence of every assumpsit or undertaking, that it is to be performed specifically, or that damages shall be paid for the non-performance.
We proceed to apply the facts in this case to the principles of the law above stated, to ascertain whether Messrs. Perkins *396have performed their agency according to the requisitions of the law' '
. . There seems to be no objection to their transactions from 1804, the time when they undertook the agency in regard to these bills, to June, 1805, when they were delivered to Hottinguer & Co. at Paris by James Perkins, and Unite Dodge was put into direct communication with that house. The counsel for the defendant contended, that the agency of Messrs. Perkins then ceased, and that Unite Dodge so understood the matter, as appears by the entry in his books discharging Messrs. Perkins and charging Hottinguer & Co. as agents for the collection. We think that reasoning is correct. The house of Messrs. Perkins had so far certainly done all that could be reasonably required. They had promptly remitted the bills to Paris for collection, and they advised their principal of their doings and of the progress of the affair frequently. Their trust was surrendered to Hottinguer & Co. and undertaken by that house, and Unite Dodge assented to the transfer. If Messrs. Perkins had done nothing more in the case, there would have been an end of their agency.
In September, 1806, Messrs. Brun, Fréres, made certain inquiries of Hottinguer & Co. concerning these bills, with intent, obviously, to get them into their own hands. Hottinguer & Co. gave immediate information to Messrs. Perkins, saying that it was evident in that affair they had no account to render but to James & Thomas H. Perkins. That was assented to by Messrs. Perkins, who, on the 19th of December, 1806, advised Hottinguer & Co. that these bills were indorsed to them and had become their property. The legal title might be considered in Messrs. Perkins, by reason of the indorsement; but the equitable right was in the estate of Unite Dodge, who had deceased six months before that time. These directions were given, probably, to assist Hottinguer & Co. in evading the impertinent inquiries of Brun, Fréres. Be that as it may, it was a voluntary or assumed agency on the part of Messrs. Perkins ; but an agency, however, which, by the rules of the law, subjected them to reasonable accountability. Whether they knew that Unite Dodge was then dead, does not appear ; but whether they did or did not, they undertook to manage fot *397whomsoever it might concern, and to give notice and to render a reasonable account of their doings. But no notice was given. The attention of Hottinguer & Co. was withdrawn from U. Dodge or his representatives, and directed to Messrs. Perkins.
It is not suggested that those gentlemen adopted this course from any improper motive. Their previous transactions indi caled not only good motives, but an extraordinary degree of in terest in the welfare of Unite Dodge. No fraud is imputed to the defendant. The counsel for the plaintiff disclaim any such suggestion. They do not charge any intentional misappropriation or misdirection of the fund on the part of either partner, or any intentional concealment of its existence. And we decide the case upon that ground.
But the defendant contends that there has not been any neglect on the part of himself or of his house ; that the extiaoi dinary lapse of time between the receiving of the bills in 1804, and of the money proceeding from them in 1822, and their little value for so many years previous to their liquidation in 1815, connected with the fact that the business was conducted by the deceased partner, and that during that whole period the house was engaged in extensive business, accounted for the fact, that the surviving partner should not have borne in mind the claim of Dodge.
But the estate of Dodge ought not to suffer from those con siderations. If the Perkinses have occasioned loss and damage to it by their neglect of duty, assumed or implied by law, they are answerable.
This claim on the French government rested in the hands oí Hottinguer & Co. until 1815, when it was liquidated for account of Messrs. Perkins : of which liquidation they were duly informed. But no notice of such liquidation was given to the heirs of Unite Dodge.
It has been urged, that Messrs. Perkins were not bound to look the world over for the owners of this property ; that the neglect is to be ascribed to the plaintiff in not calling upon Holtinguer & Co. ; for he had Unite Dodge’s books and papers, which show that the French house had the bills for collection.
We think however, that the plaintiff might well have rested upon the belief and expectation, that Hottinguer & Co. would *398have given information to the heirs of Unite Dodge, if they had any worth giving.
_ The claim still continued in the hands of Hottinguer & Co. until the death of James Perkins in 1822 ; when the defendant, who acted as liquidator, directed the French funds belonging to his late house to be remitted to London. The proceeds of the bills which belonged to the estate of Unite Dodge were included with the funds of Messrs. Perkins. The proceeds of the whole were accordingly placed in the hands of Samuel Williams ; and the defendant drew bills for the same, which were paid. No notice of these transactions was given to the heirs of Unite Dodge.
It has been urged however for the defendant, that he did not personally know that there were any funds in his hands which belonged to the estate of Unite Dodge. And we have no doubt of the truth of that suggestion. But we think it very clear that he ought to have known it. He is chargeable on the ground of negligence on the part of his house, (James Perkins having undertaken the management of the business,) for which he is legally responsible, a loss having arisen thereby to the estate of Unite Dodge.
James Perkins had conducted the affairs relating to the St. Domingo bills. If the defendant had personally known that a part of the funds remitted to Williams belonged to the estate of Unite Dodge, we think he could and would have informed the mother or brother or the family of the deceased in Boston. The same disposition which congratulated the mother upon the safe arrival of her son from the desolations of St. Domingo, would have induced the defendant to give any other information to her and the family, in which their interests were involved. The truth was, as we believe, that this affair escaped the attention of the house of Messrs. Perkins. But in point of law, we are clear that no sufficient excuse is shown for their neglect. An account of this agency should have been carried forward into the books of the company.
It has been argued, that it was res inter alios acta ; that it would have been an absurdity to keep the account which concerned Hottinguer & Co. and Unite Dodge, in the books of James & Thomas H. Perkins. But it would seem to be as *399great an absurdity to undertake the management of this concern for the benefit of Unite Dodge or his estate, and mix it up with their own on the company books, without clue or credit which should lead to a proper adjustment. It was not an affair inter alios. When the bills were received, James Perkins made a proper entry in his memorandum book, by which it would appear that his house had duties to perform for the account of Unite Dodge. If there would be an objection to the carrying of that account to bills receivable generally, a separate account might and should have been opened with “ bills receivable on account of Unite Dodge,” or “on credit,” or in some form, which would have exhibited the true state of the af fair. If that had been done, we have no doubt that the liquidator would have taken proper measures to fulfil the agency. The plaintiff would have had the immediate benefit of the funds remitted to London. But the plaintiff is not to suffer from the omission. The neglect of one partner must affect both. It is no justification for withholding compensation, that the business was managed by the senior partner. Both were equally accountable in law.
It has been argued that there was no person legally authorized by law to receive the money and give a valid discharge for it. But that circumstance should not avail, if it were occasioned by the laches of the defendant. It appears that this was a very important part of Unite Dodge’s property. It was the wreck saved from the disasters of the revolution in St. Domingo If this were lost, the expense of an administration might have been unnecessary. If the mother and brother had been informed of the facts, it cannot be doubted but that an administrator or executor would have been appointed here. The will was proved in New York in 1807.
The argument that this was a friendly agency, undertaken without any expectation of commissions for services, we think cannot make any sufficient excuse for the want of reasonable care in conducting it.
Nor is the suggestion that the defendant has had no gain, to be received as an excuse for the loss which the estate of Unite Dodge has sustained. Although these funds were not invested after they were remitted to London, they constituted a part of a *400large sum, which the great concerns of the defendant’s house required to be on hand to answer as the occasions should require. But the defendant is not chargeable upon that ground, but because there was a failure to bestow that care, which the law required, in the management of the business.
It has been urged, that the defendant was not answerable as agent or factor, until after demand. That is true as a general proposition ; but the omitting to render an account after a reasonable time, makes a demand unnecessary. We all think that the law required the defendant to take the first step, under the circumstances of this case.
We cannot think that this is a case of mutual mistakes, which is remediless because both parties were alike guilty of laches.
And upon consideration, we are all of opinion that the law requires the defendant to account for the interest for the time it is claimed in this action.
It is then to be considered, upon what sum or principal the interest should be calculated.
This presents two questions : 1. Whether the bill for 9842,91 francs (which in the argument was called the fourth bill) is to be included ; and 2. whether the plaintiff shall recover upon the value of the funds invested in France at the rate of exchange on Paris, or for the exchange on London, which was received by the defendant.
And upon a careful examination of the evidence, we are satisfied that the fourth bill is to be included in the judgment.
It has been said that the defendant should not be answerable for interest upon the fourth bill, because it was indorsed to James Perkins individually, in France, and not to the house ; and it was doubtful, to say the least, to whom it belonged, as James Perkins stated in his book, that it belonged to P. B. & Co., meaning Perkins, Burling & Co. But we are entirely satisfied that he was mistaken. That bill was received by him in France, after the other three bills had been received in Boston. His original entry therefore contained an account of only the three bills received. But he delivered the fourth bill to *401Hottinguer & Co. and informed them that it belonged to Unite Dodge. And Unite Dodge made an entry of this bill in his books, describing it particularly ; and he included it in his statement to Hottinguer & Co., and they repeatedly refer to it with the others, to make up the sum of 43099,76 francs. We have therefore all the parties concerned, when the transaction was recent, declaring that bill to belong to Dodge. The account of Hottinguer & Co. of the liquidation of the bills by the French government, was received by James Perkins in 1815, at Boston ; and finding in his memorandum book an account of only three, he accordingly placed those only to the credit of Dodge. If the fourth had been entered, or if he had recollected the transaction, he would without doubt have included that also. The proceeds of this bill came into the account of the late firm, and have been received by the liquidator. He became legally accountable for the interest upon the proceeds of this, as of the other three bills.
In regard to the exchange, it is to be considered that the funds were to be remitted to London according to the original undertaking of Messrs. Perkins. It is so stated by James Perkins in his book ; and we think it fair to presume, that the agency was resumed upon the same terms upon which it was originally taken. That was the usual mode adopted by American merchants, and was adopted by the defendant in 1822. The plaintiff assents to that course. The funds so remitted to Williams should have been placed to the credit of the estate of Unite Dodge, and the plaintiff would have been entitled to the benefit of the rate of exchange. We all think that the verdict is right in that respect.
There were some accidental miscalculations, which were agreed by the parties to be rectified, which will be done accordingly ; and the verdict is to be altered conformably to the principles before expressed.