
    Frank L. Froment, Eugene McK. Froment and L. Victor Froment, Respondents, v. David M. Oltarsh, Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Interest — Eight to interest in general—Waiver hy accepting principal — When interest not waived by payment of principal.
    After recovery by action of the purchase price of goods sold and delivered on thirty days’ time, the interest, which had accrued before the principal was paid and which the buyer agreed to pay at the time of the purchase, is recoverable in a separate action.
    MacLean, J., dissented.
    Appeal by- the defendant from a judgment in favor of the plaintiffs, rendered in the Municipal Oourt of the city of Mew Tork, ninth district, borough of Manhattan.
    Frankenthaler & Sapinsky, for appellant.
    Robert J. Mahon, for respondents.
   Seabury, J.

The plaintiffs sold and delivered goods to the defendant and received payment of the principal of the debt and bring this action to recover the amount of interest which accrued upon it before the principal was paid. Judgment was rendered in favor of the plaintiffs for interest on each item of goods sold for a period commencing thirty days after the delivery of each bill of goods. The only question raised upon this appeal is whether the plaintiffs were entitled to recover interest. The plaintiffs proved an agreement by the defendant to pay interest. The appellant claims that the interest cannot be separated from the principal and that an independent action cannot be brought for its recovery. He fails to distinguish between cases where interest is recoverable as damages and those cases where interest is due upon a contract. In the latter class of cases, a separate action may be brought for the recovery of the interest due. 22 Cyc. 1570. The interest which accrued upon the principal debt for the goods sold was an integral part of the debt itself; and the plaintiffs, having recovered only a part of the sum due them, should not be deprived of the judgment which they have recovered for the balance.

The judgment is affirmed, with costs.

Gildersleeve, J., concurs.

MacLean, J. (dissenting).

The plaintiffs brought this action to recover a sum certain as interest expressly agreed to be paid, as alleged, according to a contract for the purchase and sale of goods. The plaintiffs concede payment of the principal sum. The testimony of the senior partner of the vendor firm is very distinct that when the contract was entered into the “terms stated were cash in thirty days, thirty days from time of delivery,” but of interest as a constituent part of their contract there is no evidence. Subsequent promises, oral or written, to the plaintiffs to pay interest upon an adjustment and settlement of accounts are not to be spelled retroactively into the terms of the contracts of purchase and sale; neither are they to be enforced as after promises, because they rest upon no consideration. Ho interest appearing other than as mere incident, the receipt and acceptance of the principal sum extinguished the right to interest thereafter; and no action can be maintained herein to recover interest. “ The reason is, that interest in such cases being a mere incident, cannot exist without the debt, and the debt being extinguished, the interest must necessarily be extinguished also.” Southern Central R. R. Co. v. Town of Moravia, 61 Barb. 180, 188.

The judgment herein in favor of the plaintiffs should, therefore, be reversed.

Judgment affirmed, with costs.  