Purdy and others, executors, against Philips and others, executors

Purdy and others, executors, against Philips and others, executors. A sum of money, payable by an instrument in which interest is not mehtioned, and which does not specify any time of payment, or that the money is payable on demand, draws interest from the date of the instrument. Action on a' bond, dated the 9th of July, 1832, executed by Thomas H. White to Elizabeth Bulmer. They were both dead, and the plaintiffs were the executors of the obligee, and the defendants of the obligor in the bond. The condition of the bond was, “ that if said Thomas should and did pay or cause to bpaid to said Elizabeth the just and full sum of seven hundred dollars lawful money, then the obligation to be void, else to be in force.” On the trial in the supreme court, before Justice Paine, the bond was read in evidence, and it was admitted that the obligor, during his lifetime and up to FebruaryJst, 1845, paid the obligee sixty dollars a year, from the date of the bond, in quarterly payments; and that after that and up-to May 1st, 1850, she was paid by his executors $42 per year in quarterly payments, and some $30 besides. The counsel for the defendants insisted that the bond did not draw interest, and that these payments were on account of the principal. The court ruled and decided that the bond carried interest from its date, and that the payments were to be applied first to the payment of the interest, and the-residue in extinguishment of the principal, and directed a verdict for the plaintiffs accordingly. The defendants excepted. Judgment was rendered on the verdict, which on appeal was affirmed at general term. The defendants appealed to this court. C. W. Sandford, for appellants. N. B. Hoxie, for respondents. [MAJORITY — Denio, J.] Denio, J. The question in this case is whether, upon a bond conditioned for the payment of a sum of money, where no time is mentioned for the payment, and it is not even stated to be payable ón demand and nothing is said about interest, interest is payable from the date of the bond. The precise question was decided in England, in favor of the allowance, in Farqhar v. Morris, (7 Term, 120.) None of the cases referred to on the argument from the courts in this state present the exact point. They show indeed that where no time of payment is mentioned, the money is payable immediately, and an action may be maintained at once; and that interest is generally payable from the time the principal ought to be paid. (Wenman v. The Mohawk Ins. Co., 13 Wend. 267; Rens. Glass Fac. v. Reid, 5 Cowen, 587.) In the last mentioned case, Senator J. C. Spencer, in illustrating the principle that interest was payable only after a default, stated as a familiar case, that upon a note payable on demand interest was never allowed but from the time of demand made, by suit or otherwise; and Jacobs v. Adams, (1 Dall. 52,) is referred to at the foot of the page, where the same thing was said by McKean, Ch. J. It was not, however, called for by that case. We think the case in Term consists best with principle, and that we ought to follow it. The fact of the periodical payments of $60 per annum during the lifetime of the defendant’s testator, and of $42 per annum after that time, can have no just influence upon the question. The former sum was more and the latter was less than the legal interest. They were probably made in such amounts on account of the wants of the creditor, and were not thus measured with any view to the interest. The court below was right in directing interest to be reckoned according to the rule where partial payments are made upon a demand drawing interest, and its judgment should be affirmed. Judgment affirmed.