Dewey v. Bowman

Burnett, J., delivered the opinion of the Court—Terry, J., concurring. This case was decided at the last April Term of this Court, and the judgment of the Court below affirmed, upon the ground that no motion was made for a new trial. Upon a petition for a rehearing, we are satisfied that our former decision was erroneous. The case was an equitable proceeding, and no motion for a new trial is necessary in such cases. We were led into this error by a mistake in the brief of the defendant Cohen, in which the action is styled, “ an action of trover and conversion.”

This case was heard in the Court below upon complaint, answer, and exhibits, and not upon “ allegations, proofs, and arguguments,” as the plaintiffs’ counsel has it. The finding uses the terms “ allegations, exhibits, and arguments,” and not the word “ proofs,” as stated in plaintiffs’ additional brief.

This being a proceeding in equity, and having been tried upon the complaint, answers, and exhibits, the usual presumption in favor of the correctness of the finding cannot apply.

The only substantial error in the finding of the Chancellor, is in reference to the value of the note of Schoyer to Bowman. In the complaint, it is alleged, that “Schoyer being indebted to said defendant Bowman, upon a note, dated August 25,1854, for the sum of fifteen hundred dollars, payable three months after date, with interest at four per cent, per month, for the purpose of securing the payment of said note, executed to said' Bowman a writing, a copy of which is hereto annexed, marked D.” This instrument was an assignment of the lease to Bowman for the purpose stated in the complaint. The statement of the note, as [149]contained in the complaint, is the same as the description found in the assignment to Bowman.

The first question to be determined, regards the period at which the interest began to run. Was it from the date of the note, or at the time the note became due ? The parties had the right to stipulate what the rate of interest should be, and when it should begin to run. They have expressly stipulated as to the rate of.interest, but not as to the time of its commencement. We must, therefore, infer the intention of the parties as to the time the interest should commence, from the note as we find it. From the face of the note, the conclusion is clear, that the consideration for which it was given, passed from the payee to the maker at the date of the note. We must presume that this consideration was of the value of fifteen hundred dollars; this sum the maker promises to pay, with interest, at a specified time. The promise is to pay the amount of the note, with interest on the same, at a future day. The interest, therefore, in the contemplation of the parties, must accrue before the note falls due, and must run from the date of the note.