
    
      J. N. Scofield v. J. J. Kinsler.
    
    'Where plaintiff deposited, with defendant, .certain sums of money for an indefinite quantity of brick and gravel to be delivered by him, and after he ceased to deliver these materials without accounting for the whole sum, in the quantity furnished, brought against him an action for money had and received, for the recovery of the balance, the Court held that no balance could be struck until the date of the final delivery, and that from that time, only, defendant was liable for the balance, with interest thereon, without demand by the plaintiff.
    
      Before Mr. Justice Withers, at Columbia, March, 1848.
    The action was brought for money had and received.
    The plaintiff had undertaken a job connected with the water works in Columbia, which required a quantity of brick and pebble.
    The plaintiff produced the following receipt; which a witness said was subscribed by defendant, viz : “ Received, Columbia, March 28, 1846, of Mr. Scofield, forty dollars, on brick account.” The same witness said, he saw in the plaintiff’s possession, in 1847, another receipt, which he had no doubt was also subscribed by the defendant, in a form similar to the above, acknowledging the receipt of three hundred dollars from the plaintiff.
    Another witness had also seen the last mentioned receipt, and stated that Kinsler, the defendant, told him it was for $300, for brick, he was to furnish for work Scofield had •engaged to do at the water works. This witness saw the receipt mentioned, in the summer of. 1846. This witness, (Maybin) and Kinsler, were securities for Scofield, upon his engagement.
    The plaintiff produced an account for brick, which the defendant admitted he had rendered to him, charging the delivery of brick, from 21st Feb., 1846, to the 5th August, 1846, and gravel, on the 6th August, 1846, amounting to $179 41.
    S. B. Welch said: I was working with Scofield, from the 15th June, 1845. I don’t think defendant delivered brick or tile, to Scofield, before the first date in the account rendered, nor after the last date. I think a few brick were delivered to Brown & Scofield, at the Church. Gravel was delivered, by Kinsler, to Scofield ; 15 loads, which I considered equal to 13 good ones ; delivered at the basin. I received all the gravel delivered at the basin, and I think no more was delivered by Kinsler, than the above quantity. It would take 170 loads of gravel, for the whole work at the basin. Other persons delivered the better part of it.— In the reply, the same witness said : I kept the account of gravel, when the work was going on, and I think Kin-sler could have delivered none without my knowledge there were 15 (equal to 13) loads.
    The defence insisted on, was, that Kinsler had delivered brick and gravel, to the full amount of the two sums advanced. His testimony was to the following purport: In August, 1846, his wagon was seen engaged in hauling gravel to Scofield — 4 horses hauling — engaged, perhaps, two or three weeks off and on, with one wagon ; but the number of days were not specified. Another witness said, defendant was engaged 4 or 5 weeks with 2 wagons — not the'whole time. He could not tell how many loads were hauled — one wagon, with the force Kinsler had engaged, might haul 4 or 5 loads a day — a load was supposed to be worth $1 75, (and that was the price charged in the account rendered to plaintiff.) The estimate of the witnesses for defendant, as to the quantity of gravel it would take to complete the work on which plaintiff was engaged, ranged from 600 to 1000 loads. This was quite conjectural, however, and the witnesses spoke with no confidence. It is before stated, that one of plaintiff’s witnesses, who was engaged with Scofield, said it required 170 loads.
    The above comprises the substance of the whole testimony. Reported, because the 2nd of appeal seemed to require it. The presiding Judge told the jury he did not think interest should go on the two sums advanced by plaintiff, from the time oí the deposite; but should be allowed on such balance as they might conclude was in defendant’s hands, when he .ceased to. deliver brick or pebble — and from that period. They were fully instructed as to the general merits of the case; that the true inquiry was whether the money had been advanced as alleged by plaintiff, and how much. If so, whether defendant had accounted for the'whole sum in materials furnished, or for how much ; and their verdict would be according to their conclusions, on these points.
    The jury returned a verdict for the plaintiff, for $160 50 ; with interest from 25th March, 1845.
    The defendant moved the Court of Appeals for a new trial, on the following grounds :
    1st. Because the sum sued for, was not an interest bearing demand, and the jury should not have given interest.
    
      2nd. Because the finding of the jury was contrary to the law and the evidence.
    Moore, for the motion.
    Porcher, contra.
    
   Richardson, J.

delivered the opinion of the Court.

After the verdict, it cannot be questioned, that the balance of the $340, advanced by Scofield to Kinsler, amount-, ed to $160 50. But, as the original sum of $340, had' been deposited with Kinsler, for an indefinite amount of brick and gravel, no balance could be struck, until all such materials had been delivered to Scofield. Such final delivery appears from the evidence, to have occurred on the 6th August, 1846. Until that time, Kinsler was merely Scofield’s depository, for a certain and defined appropriation of the $340. But, after that purpose was answered, Kinsler stood as to the nett balance, as one, to whom cash had been lent, or who had used another’s money — i. e. he was liable for the balance, from the 6th August; and also for the interest. Because he kept the money from that time, for no purpose of Scofield ; and it may be inferred, that he used the money for his own purposes. See C. & J. Bulow v. G. & Co. 1 N. and McC. 45, to justify the charge of interest, in cases of the imputed use of another’s money. In a word, the rational construction of the contract, is, that Kinsler was to repay the overplus of money, as soon as he had furnished the last of the brick and gravel. If, for instance, he had furnished none, interest would have been due, from the date of the advancement, upon the inference that he employed it for his own use; and the same principle applies equally to the nett balance in hand, after the specific purpose of Kinsler had been answered. Lastly, and for the same reasons, Scofield was not obliged to make a specific demand of the balance ; i. e. Kinsler cannot be put upon the footing of a Sheriff, a bank, or general factor, who collected money, simply to be kept to abide orders. Such was not Kinsler’s agency. — ■ "We, therefore, concur with the presiding Judge, as to the time of the interest; and a new trial must of course be ordered, unless-the plaintiff remits so much of the interest as is allowed by the jury, from the 25th March to the 6th August, 1846.

O’Neall, J. Evans, J. Frost, J. and Withers, J. ¡concurred.

New trial granted nisi.  