
    Guillaume Reusens, Respondent, v. Oliver M. Arkenburgh, Appellant.
    First Department,
    December 3, 1909.
    Trial — amendment of pleading — compound interest — express promise and consideration essential — acquiescence in account stated not sufficient — tender — effect on security and debt — appeal — reduction of recovery.
    Where a complaint to recover money loaned contained two counts, one for the recovery of the money and the other on an account stated, an amendment of the first count so as to make it similar to the second is not ground for reversal, even though the first count originally failed to state a cause of action, for the
    . plaintiff had a right to proceed on the second count irrespective of the amendment.
    There can be no recovery of compound interest in the absence of an express promise to pay it founded upon a good consideration.
    An express promise to pay compound interest is- unenforcible in the absence of a consideration.
    Silent acquiescence in an account stated is not equivalent to an express promise to pay compound interest.
    An agreement to pay interest upon interest before the interest has accrued is against public policy. Such promise is only enforcible where made upon a sufficient consideration after the interest to be compounded has become due.
    Although the tender of a debt discharges the creditor’s lien on security and renders him liable for conversion if he retains it, the debt itself is not discharged by a tender refused.
    It is not incumbent upon a plaintiff suing at law to recover moneys loaned to or expended at the request of the defendant to offer to return collateral security; nor can his right of recovery be affected by a tender of the amount due unless it be kept good by payment into court as required by the Code of Civil Procedure.
    Even though a record cannot be changed on a new trial, the appellate court cannot reduce the- plaintiff’s recovery unless he consents thereto.
    Appeal by the defendant, Oliver M. Arlcenburgh, from a .judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of June, 1909, upon the verdict- of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Harry A. Gordon [Herman B. Goodstein with him on the brief], for the appellant.
    
      Edgar J. Nathan, for the respondent.
   Laughlin, J.:

The plaintiff has recovered on an acount stated for moneys loaned and advanced which included compound interest, being interest upon the interest in the account, as stated from year to year. The complaint contains two counts for the recovery of the same amount. The first count was for moneys loaned to and paid out for the defendant. The second count was on an account stated, evidently on the same liability. At the opening of the _trial counsel for the defendant moved to dismiss the first cause of action'. The court ' thereupon stated that the first count in -the complaint was amended to make it on an account stated, in effect the same as the second. Counsel for the appellant duly excepted, and urges the exception as a ground for reversal. Ilis theory is that the first count did not state a cause of action owing to the fact that instead of pleading facts, conclusions of law were stated therein, and that the court was not warranted in changing that cause of action into one upon an account stated. The answer to this contention is that the appellant has not been prejudiced. The plaintiff had the right without any amendment of the pleading to proceed on the second count and that is in effect what he has done for by the amendment both counts became substantially the same.

The business dealings between the parties which .gave rise to the cause of action originated in an application made by the defendant to the plaintiff on the 26th day of October, 1896, for a loan of $2,100. The money was loaned and as security therefor the defendant delivered to the .plaintiff two policies of insurance on his own life issued by the Equitable Life Assurance Society. The plaintiff thereafter paid the annual premiums on the policies. There were two other accounts between the parties involving loans made by the plaintiff to the defendant, but by mutual consent separate accounts of the three loans were kept. The plaintiff annually rendered an account in writing to the defendant with respect to these three loans stating in each instance separately the balance due on account of each loan on a specified date. In making up each account the interest on the preceding account was figured on the total amount and the principal and interest were together used as a new principal for computing interest. The second of these accounts was rendered in the early part- of 1898. It evidently showed that compound interest was being charged, for the defendant testified that he had an interview with the plaintiff concerning it in which he explained his inability to pay the amount 'at that time and stated that lie could not afford to -pay compound interest, to which, according to his testimony, the plaintiff replied, “ You pay me my money and I will protect you.” The plaintiff denies that he had any conversation with the defendant concerning' compound interest. The learned counsel for the plaintiff recognizes the rule that in the absence of evidence of an express promise to pay compound interest, no recovery therefor can be had (Guernsey v. Rexford, 63 N. Y. 631), and he seeks to sustain the recovery upon the theory that the account stated having been accepted without objection there was an implied promise to pay the balance shown thereon and in some instances in letters an express promise to pay it. With the exception of the objection made to the compound interest to which reference has been made, it does not appear-that the defendant objected to the account.stated, but mere silent acquiescence in the account stated would not constitute an express promise to pay compound interest, and it was long since settled by the Court of Appeals in Young v. Hill (67 N. Y. 162) that even an express promise to pay -compound interest included in an account stated would be a nudum pactum and unenforcible in the absence of evidence of a consideration therefor. There are letters in the record from which it may be argued that the defendant did promise to pay certain of these accounts stated after he knew that they included compound interest, but the other essential element, namely, consideration, is wanting. There is no evidence of a valid agreement for the extension of time for payment or for forbearance or consideration of any other name or nature to' support the promise. Moreover, it was held by the Court of Appeals in Young v. Hill (supra) that an agreement to pay interest upon interest before the interest has accrued is against public policy, and that the only instance in which an agreement to pay compound interest is enforcible is where the agreement is made after the interest upon which interest is to be paid has become due and where there is a sufficient consideration for the agreement. Upon no theory can it be determined from this record that there was an express promise to pay interest upon interest with respect to each of these accounts stated, after interest included therein became due and payable. The recovery, therefore, could not be' sustained even if there were an express promise in some instances to pay compound interest for a good consideration.

The appellant insists that the action cannot be maintained without proof of tender of the securities for the reason that prior to its commencement his counsel duly tendered to the plaintiff the amount due on the last account less compound interest, in other words, the amount of the moneys loaned and paid out on account of the defendant with simple interest thereon to the date of such tender, and demanded the return of the insurance policies. Doubtless that tender discharged the plaintiff’s lien on the insurance policies, and had the defendant in this action interposed a counterclaim fof conversion thereof it probably would be sustained. (Cass v. Higenbotam, 100 N. Y. 248.) The defendant set up the tender in his answer and the refusal thereof, but asked no affirmative relief. The debt was not discharged by the tender which was refused' and this action is to recover the indebtedness. It is not incumbent on .the plaintiff in an action at law on an obligation for the payment of money or to recover for moneys loaned or expended at the request of the defendant, tó tender the return of collateral security; nor can his right to recover be affected by a tender of the amount due unless the tender be kept good by paying it into court as provided in the Code of Civil Procedure. (Code Civ. Proc. §§ 731, 732, 733, 734.) It is quite improbable that the record would be changed on another trial but we cannot reduce the recovery unless the plaintiff consents thereto.

The judgment and order should, therefore, be reversed and anew trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to deduct from the recovery the amount of compound interest included therein together with interest thereon, in which event the judgment will be modified accordingly and as modified affirmed,, without costs. The order should be settled on notice.

Ingbaham, McLaughlin, Houghton and Scott, JJ., concurred..

Judgment and order reversed and new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as stated in opinion, in which event judgment as so modified and order affirmed, without costs. Settle order on notice.  