# Henry v. Risk

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HENRY EXOR. verʃus RISK et al.
T
Ingerʃoll for the Plaintiff. A Jury may give intereft, by the way of damages, in an action for goods fold and delivered, when it is the agreement of the parties, when the Plaintiff has been vexatioufly kept out of his money, or when it is the cuftom of the trade. Doug. 361. He then offered to prove by withneffes, that it was the cuftom of the trade in Philadelphia, to allow intereft in cafes fimilar to the prefent.
But by M‘KEAN, Chieƒ Juʃtice : The point has been repeatedly determined otherwife in this Court, as well as in the Courts of England ; and, therefore, witneffes cannot be admitted to contradict the eftablifhed principles of the law. The cafe in Douglas is confined merely to the American trade. The ufage has been otherwife in Pennʃylvania, between inhabitants.
Bradƒord for the Defendants. Intereft fhall not be allowed upon an open account, for goods fold and delivered. 3 Wils. 206. Jacob's Claim, vs. the Eʃtate oƒ Adams et al. ant. 52.
by the court.– The queftion is fhortly this: The Plaintiff's teftator having fold a confiderable quantity of goods, wares, and merchandize, to the Defendants, for which the Defendants have paid the net amount, fhall intereft be allowed upon the account far thefe goods, wares, and merchandize, without any notice to the ​
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Defendants that intereft would be charged, or any agreement, upon their part, to pay it? If this point had not been already fettled, it would neverthelefs be highly inconvenient to the public welfare (which it is our duty to confider) that the Plaintiff's demand fhould be admitted ; for, as the fhopkeeper is obliged to retail his merchandize up on a credit, which fometimes terminates in a total lofs, and is often unreafonably protracted by the perfon whom he trufts, his ruin would inevitably enfue, if, befides thefe advantages, the merchant, after a fhort time, could charge him with intereft, the accumulation of which, muft, infenfibly, confume the flow and precarious profits of his bufinefs. On the other hand, it is , at once, reafonable and ufeful,that the accounts between merchants and the retailers fhould be periodically fettled and liquidated ; and when that is done, it is eafy for the creditor to take a bond, a note, or fuch other fecurity as will entitle him to intereft.
The cafe, however, does not, at this day, depend upon general arguments; the law, which we cannot alter, has been already afcertained. Jacob's claim v. the Eʃtate oƒ Adams and his Wiƒe determined in this Court, has been cited for the Defendants. In that cafe,
‘‘ one Flower having fold lands to Jacobs, died before the purchafe
‘‘ money was paid, or the conveyance executed. His executors,
‘‘ however, received the money, andmade a deed for the land. Af-
‘‘ terwards, the will, under which the executors acted, was fet afide
‘‘ as having been obtained from the teftator by practice and undue
‘‘ influence ; and letters of adminiftration being confequently grant-
‘‘ed, the adminiftrators, who had wanred Jacobs not to pay the mon-
‘‘ney, influenced a fuit againft him and recovered the amount. It
‘‘ was, upon thefe circumftances, adjudged, that the executors
‘‘ fhould refund to Jacobs ; but that no intereft fhould be allowed,
‘‘becaufe the money had been received, as well as paid, in a mif-
‘‘take, and no fraud appeared on either fide.’’ There have been many determinations in the Courts of Pennʃylvania, and many authorities may, likewife, be colleted from the Engliʃh law books, in which the Judges have uniformly maintained, that intereft fhall not be allowed, upon an open account for goods fold and delivered. The cafe in 3 Wils. 205. 6. exprefly recognizes this doctrine . With refpect to the authority cited from Douglas, that evidently relates only to the American trade, in which it appeared to have been the ufage for the merchants in England to allow their American correfpondents 12 months credit, and then to charge them 5 per cent intereft; and that the Engliʃh tradefmen, in the ʃame trade, allowed the merchants 14 months credit, and the charged them a fimilar intereft. That determination, therefore, does not interfere with the general rule ; and the Court are unanimoufly of opinion, that the intereft claimed by the Plaintiff, upon the prefent occafion, ought not to be allowed by the Jury.
The verdict of the Jury was conformably to this opinion.
On the meeting of the Court the next day, the chief justice obferved, ‘‘ That in the opinion delivered yefterday in this ​
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caufe, the Court had not relied merely on the cafes decided here, but on all the cafes which had been decided upon the fubject, in all the Courts of England. Thefe cafes, although he had before generally referred to them, he now thought proper to mention particularly , that every doubt upon the queftion might be finally removed. In the Common Plea, for money owing for goods fold and delivered, no intereft fhall be allowed. 1 Barnes Notes 157. 3. Wilʃon 206. Pract. Reg. Com. Pl. 357. In the King's Bench, intereft refufed upon an inland bill of exchange after acceptance, where no proteft ; and the Court there faid, that it had never been allowed barely for money lent, without a note. Harris v. Benʃon. 2Stra. 910. In the Court of Chancery, intereft was not allowed on book and fimple contract debits &c. 3 Rep. Chan. 64. Dolman v. Pritman. “ Thus the concurrent practice of all the Courts in England, has in thefe cafes difallowed the charge of intereft ; and the practice of Pennʃylvania, has been regulated by the fame principles. It is not, indeed, more than four years, fince in this State, on the other fide of the Suʃquebanna, the Juries have been induced to allow intereft, even upon notes of hand.”