The Hawaiian gazette., 1872-11-20
p,xco-ocToBss FERN, Isl.

MANN. J. J.
BIZ BoEss composing tie tym Of Bolss d Co, .
6. 4 UI,la 4lilzisistJyl,0r gf he EStats q
r. Lyon licensed
This vas al action Of contract to recover y I
per cent interest on an account stated. Defen-
dants iulestate bad orally agreed with the plain
TIFF for this nate. The defendant BY approval OF
the Probate Court offered to pay this rate from
date Of publication Of bis appointment, but not
from the death Of the intestate. The Police
Court gave Judgment for the entire interval, At
nine per cent The defendant sPpealsl on the
grounds that the Statute requiring six months
delay for approval Of claims before payment by
an administrator, suspends the running Of IN
tersst during that time; that the rate orally
azreed for could not be recovered under tie
Statute which allows nine per cent in the absence
Of written agreements for higher rate, and
therefore that interest 10 this case, IS matter
not Of contract but merely incidental TO the debt
by way Of damages, and therefore not recover
able after payment Of the principal; also that
administrators are liable for interest only in case
. Of unnecessary dslay. citing allen. 35Si Pick
a6s Pars. Coutr, $50; Johns, 22S; : H.,
I 25s II Paige I42; Is Wend.. 6S9 Is T., 76i
IgN.H. POS; Story's Coutr. P 294 The pIaiu-
tits counsel relied on the Statute which allows
interest on accounts stated. without exception
I :. B. Dole for plaintiff.
Al. Judd for defendant
I Opinion Of the Court BY wIpzNAvS. J
This Is a suit brought By the plaintiff to re-
f cover interest accrued on the balance due on au
account stated, the principal having been paid By
the defendant.
Section 1850 of the Civil Code provides that
interest shall be allowed for money due on the
settlement Of accounts from tie day on which the
balance Is azeertaiued-7
As in our opinion this Is case under the
above provision OF the Statute, the judgment Of
the lover Court Is confirmed.
HAKrvE1L. J. l think the Statute covers this
case in allowing nine per cent. interest OBJ al sums
due On settlement Of accounts where no higher
rate L expressly agreed upon in writing. For it
seems to me- that although the probate act post
uones for some SIX mouths payment Of Claims
against the estates Of deceased persons, the word
e. frs L used in the Statute not as Synonymous
With -DayaBIs.- but locking only st the agreement
Of the parties. and At the time when the debts
thereby became due The presumption that
such was the meaning Of the Statute Is strong in
cases Of actual OF implied contract to pay interest
from . given time. Il Is at implied condition
in all simple contracts, that the personal repre-
sentative Of either party Is liable to the extent
Of assets for breach Of the contract, whether il
0ccur during the lifetime Of the party or not
No one zoCld care to loan money At interest
with risk Of losing six months interest at the
death Of the borrower. There may be cases,
where interest rests % 10 actual OF implied con
Tract. but merely on the ground Of damages, IN
which deIAy in payment. consequent upon the
act Of God and operation Of law, would lot IN
volvs the running Of interest But this Statute
have no doubt goes on the theory Of an implied
eo1trlet IN the cases It euumerases, and uos GO
The theory Of earlier days, that II vas zin to
contract for = loan Of money Al interest
: / see 10 earse, however. fof Tesorting to the
Statute il the case ct an actual contract whether
oral or written. certainly for 10 other paTpose
than to restrict the plaintiH to nine per cent We
have 10 slatute Of u=ury- There Is 10 ilegaIity
in Ioaaing money At any rate Of interest by oral
Or by written contract, noE does the Statute
declare that no action lies to recover over nine
per cant, uulsss 90 written agreement There
( 10 Ingredient that Is Illegal sod or invalid IN
this oral agreement The promissoT, after having
used the mgrey. ought not to Be allowed to
plead % AZ action to recover What he agreed to
nav therefor, tLat he agreed to pay more than i
/ sued for, and that, Is bis agreement Is not in
writing. he vii Therefore pay nothing II Is Z
valid legal promise, based OF valid, legal c0usid-
srs,ion- Be. tie case does not require decision on
the Allowance Of the twelve per cent which was
thus agreed for, bat orls On tie allowance Of the
nine pes cent already awarded. Assuming then
that the oral contract vas not enforceable 10 rs
faH extent, is existence i 10 reason foF dsniss1g
al action Of inde5laf.zs assszspst o. the implied
premise Of paying tie statutory rate foF the
money lent On q CONT fOr money lent, in a.
action on the implied premise, evidence Of tie