
    GRAHAM against CHRYSTAL.
    
      Supreme Court, First District ;
    
      General Term, May, 1865.
    Interest.—Exceptions.—Proof of Loss of Papers.—Preliminary Evidence.
    The old common law rule, which requires a demand to be liquidated, or its amount ascertained, before interest can be allowed, has been so far modified, that if the amount is capable of being ascertained, it carries interest.
    A general exception to the finding of a referee allowing interest is not specific enough; if the error is in allowing interest for too long a period, the exception should state from what period it should be computed.
    The proof of the loss of papers, is a preliminary matter addressed to the Court exclusively, and its sufficiency is to be passed on by the Court, in view of the peculiar features of each case.
    Appeals in two cases, from the judgments entered therein, on the reports of a referee.
    The action in which the first opinion, below reported, was delivered, was brought by' John Graham. The other action was brought by Dewitt 0. Graham, and James S. Carpenter, as executors of the will of David Graham, deceased. Both actions were against the same defendant, Peter Chrystal.
    I. The action of John Graham against Chrystal, was brought upon a claim by the plaintiff for professional services alleged to have been rendered for the defendant, in defending him in two criminal prosecutions, one against him alone, and the other against him and one Joseph B. Pollard, commenced in the month of October, 1845, and terminated, in the case of the prosecution against the defendant alone, June 14, 1847, and in the case of the prosecution of the defendant and Pollard, in May Term, 1850.
    The plaintiff claimed that the defendant promised to pay what the services were reasonably worth, 'and that the sum of nine hundred dollars, and interest thereon from June 1, 1850, were due.
    The defendant denied the retainer, and the promise to pay. Also, that the services were reasonably worth the amount claimed by plaintiff, and pleaded the Statute of Limitations.
    
      The plaintiff replied, putting in issue the allegations under the defence of the Statute of Limitations;
    The case was tried before a referee, who reported, among other things, that in 1848, the defendant left the State without apprising the plaintiff of his intention so to do, and plaintiff was ignorant of his residence, from that time till shortly before the commencement of this action ; that the work and labor done before June 1st, 1850, after crediting the defendant with a payment of one hundred dollars, was worth nine hundred dollars, and that that sum with interest from June. 1st, .185t)t_ amounting together at the date of the report, to §1,731 95, was due from the defendant to the plaintiff.
    Judgment was thereupon entered by the plaintiff for that amount, and costs. The defendant filed the following exception: “Please take notice, that the defendant herein hereby excepts to each and every of the findings of fact and conclusions of law contained in the referee’s report in this action, except the 6th and 7th findings of fact,”—and appealed from the judg- ' ment.
    
      Harison & Waring, for the appellant (alter other points) VI.
    The referee erred in the second conclusion of law, in allowing interest from June, 1850. No account was ever made out or rendered, and the defendant was not, therefore, chargeable with interest. The plaintiff allows ten years to elapse without asserting any claim in any form. The sum of §831.95 should be deducted from the recovery, and interest allowed only from commencement of this action—if there be judgment for plaintiff for any amount.
    
      Carpentier & Beach, for the respondent.
    I. The exceptions to the report and decision of the referee are insufficient and invalid. (1) They are too general and vague (Willard v. Warren, 17 Wend., 257). (2) There is no sufficient exception to the conclusions of law, and this court is not authorized to review the decision (Brewer v. Isish, 12 How. Pr., 481; Magie v. Baker, 14 N. Y. [4 Kern.], 435). (3) To enable the appellant to object to the allowance of interest for the whole period, his exception should have been more specific and certain, pointing out the error complained of (McMahon v. The New York and Erie R. R. Co., 20 N. Y., 463).
    
      EE. The allowance, by the, referee, of interest upon the amount of the recovery ($900) from June 1st, 1850, was proper.
    The law of interest was very fully considered in the case of the Eensselaer Glass Factory v. Eeid (5 Gow., 587). It is referred to by Golden, Senator (at p. 596) as being an equitable allow-. anee; and the law in this State has settled down into the principle that it is an equitable, and must be a full, indemnity from and with reference to the time of the default of the party upon whom it is inflicted. It was advanced in that case by Spencer, Senator, that interest was allowed by the Court in certain cases as matter of law—i. e., in cases of implied Is well as empress agreement—and by the jury in other cases, under the direction of the Court, as an addition to the damages (pp. 614, 616).
    If interest is to tie inflicted upon principles of equity, and as a mulct for the default of a party, the appellant (Chrystal) was in default from the time the respondent’s services were rendered to him. Ho term of credit was given to him. The plaintiff did not agree, but was forced to wait his convenience. If the appellant could run away (as he did), and deprive the respondent of interest upon his claim, during'his (the appellant’s) absence, he would l)e permitted to talee advantage of his own wrong, which neither law nor equity ever allows.
    In Lush v. Druse (4 Wend., 313), it was held that a landlord is entitled to interest upon rents, payable in wheat, from the day stipulated for delivery; and this upon the principle that it was the value of the wheat that became due, which value was payable in a particular way, and that this value could be ascertained by reference to the “ market.”
    This principle was followed up in Van Rensselaer v. Jewett (2 N. Y. [2 Comst.], 135) and broadened into this rule: “ Where a debtor is in default for not paying money, delivering property, or rendering services, in pursuance of his contract, he is chargeable with interest from the time of default, on the specified amount of money, or the value of the property or services at the time-they should have been paid or rendered.” In affirmance of this rule is Livingston v. Miller (11 N. Y. [1 Kern.], 80).
    In McMahon v. The New York and Erie R. R. Co., (20 N. Y. 463, 469), it is asserted by Selden, J., that interest is sometimes allowed, although the amount of the demand neither has been nor can readily be ascertained, where the debtor is in default for not having taken the requisite steps to ascertain the amount of. Ms debt (Van Rensselaer v. Jones, 2 Barb., 643 ; Dana v. Fiedler, 12 N. Y. [2 Kern.], 40).
   By the Court.—Clerke, J.

We intimated on the argument, that the objections embraced in the first five points of the defendant’s counsel were untenable, and we required no notice of them on the part of plaintiff’s counsel.

The sixth point of défendant’s counsel relates to the finding of the referee, on the subject of interest. He maintains, that as no account was to be made out or rendered, the defendant was not, therefore, chargeable with interest. As the court remarked in McMahon v. The N. Y. and Erie R. R. Co., (20 N. Y., 469), the old common law rule, which required that a demand should be liquidated, or' its amount in some way ascertained, before interest could be allowed, has been modified by general consent, so far as to hold, that if tlie amount is capable of being ascertained, then it shall carry interest. It was the duty of the defendant in this case, being the debtor of the plaintiff, to ascertain- the amount of his debt. This could easily have been done, if he intended to pay lor the services rendered to him by the plaintiff, which he was bound to do on their completion. I think, therefore, the exception to this finding of the referee, would be untenable, even if it was properly made. But it is not properly made. The exception is not specific enough. It is a general exception to the finding. If the error was in allowing interest for too long a period, the exception should have stated from what time it should be computed; so as to give the plaintiff an opportunity of remitting the excess, and thus avoid the consequences of the error. (McMahon v. The N. Y. and Erie R. R. Co., 20 N. Y., 470.)

[The Court then disposed of some- minor exceptions, wMch are not important to be noticed here.]

. Judgment affirmed.

II. The other action was brought by Dewitt C. Graham, and James S. Carpentier, as executors of the will of David Graham, and was to recover for professional services- rendered by their testator to the defendant, in the same matters as in the above suit of John Graham. Much of the evidence in the two cases was identical. Among other things offered by the defendant in both cases was evidence of the contents of letters of David Graham, which was objected to and overruled in both cases.

Harison & Waring, for the appellants.

Oarpentier & Beach, for the respondent.

The following was the introductory examination of the defendant. Q. Have you received any letters or notes from David Graham? A. I have received a letter from Mr. David Graham in reference to this business. Q. How many notes ? A. Two or three. Q. Where are those notes? A. I have looked for them among my papers, and cannot find them. Q. What were those letters in reference to ? A. Money matters mostly. Q. Can you state the contents of them ? A. Ho; I could not state the precise'words, but think I could give the substance perhaps. Q. Will you state the substance of them, sir?

This question was overruled, and the defendant’s counsel excepted.

By the Court.—Clerke, J.

We see no better reason for disturbing the findings of fact in this case, .than in that in which John Graham is plaintiff. The exceptions in this case, worthy of any consideration, are, except one of them, similar to these in the other, and must receive the same disposition. The exceptions, have been treated by the counsel in both cases as similar, except that relative to the ruling, rejecting parol evidence of the contents of David Graham’s notes to the defendant. While admissions made by David Graham could not bind John Graham, they would bind himself, and his representatives. The only question, therefore, on this point, is, whether sufficient proof of the loss of the notes was given to allow secondary evidence of their contents. Secondary evidence-is not admissible, if by reasonable diligence the original could have been produced. The degree of diligence depends on the nature of the transaction to which the paper relates, and other circumstances. The sufficiency of the proof of the loss is a preliminary point, addressed to and determined by the court exclusively,. and upon which it has to pass in view of the peculiar features, which characterize each case as it arises. In the case before us the witness testified that he had looked for the notes among his papers and could not find them. He did not say where he had made the search, or that he had made a diligent search; he gave no particulars, ■ and did not state whether he believed they were lost. The referee, who had the witness before him, was, undoubtedly, the best judge of the reliability of this preliminary proof; and he was satisfied that there was not sufficient proof of the loss of the notes to admit secondary evidence of their contents. We cannot say that he erred in excluding it. I think the judgment should be affirmed, with costs.

Judgment affirmed.  