
    Knickerbocker Portland Cement Company, Appellant, v. Lawrence Rukeyser, Respondent.
    Third Department,
    July 1, 1915.
    Contract—action for goods sold and delivered — interest — evidence.
    In an action to recover for cement sold and delivered to the defendant, the plaintiff claimed a credit was extended for sixty days from delivery, and the defendant claimed the credit was for ninety days. The only items in dispute were interest and an amount for bags alleged to have been returned. Evidence examined, and held, that a judgment for the plaintiff, without interest, should be affirmed.
    Appeal by the plaintiff, Knickerbocker Portland Cement Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of Columbia on the 7th day of January, 1915, upon the verdict of a jury and also from an order entered in said clerk’s office on the 7th day of January, 1915, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Crandell & Graf [John L. Crandell of counsel], for the appellant.
    
      Manton Marks, for the respondent.
   Kellogg, J.:

The appellant’s claim for interest on the damages recovered raises the only question upon this appeal. Plaintiff delivered ' to the defendant large quantities of cement in August, 1913, under an agreement by which the plaintiff claims a credit was extended for sixty days from delivery and the defendant claims the credit was for ninety days. In addition to the cement-delivered August 26, 1913, and August 30, 1913, the plaintiff claimed three items of demurrage and also interest. The credits of the defendant consisted in moneys paid and bags in which the cement was shipped, for which he was entitled to a credit of ten cents each.

Upon the trial the dispute centered about a quantity of bags which the defendant claimed he delivered and the plaintiff claims it did not receive, and the interest upon the balance due for the cement. The amount found due the plaintiff without interest was $485.14.

The action was commenced August 1,1914. In the charge the court states that the only items in dispute were the interest and an item of forty dollars for bags alleged to have been returned, and that counsel had agreed that the jury need not compute the interest, but is to report whether there was a sixty days’ credit or a ninety days’ credit, “ and leave it for the Court and clerk to compute upon whichever basis you state the credit was to run, and also whether there was to be any interest on this claim. You will take the documents in evidence here, with such aid as they may be to you, and determine whether the principal is $485.14 or $525.14, and whether the interest ran from sixty days after the account was due, or ninety days after it was due, or whether there was to be no interest added. If you find a verdict for the plaintiff, as you must for one of those two amounts, state the amount of principal and then add to that how the interest is to run, whether sixty days, ninety days, or not at all.” This charge was not excepted to.

The verdict was for the plaintiff for $485.14 net, no interest.” When the verdict was received the appellant asked that the court add interest after ninety days from the delivery. The court declined.

There had been prior sales of cement from the plaintiff to the defendant and at times the defendant failed to pay when the time of credit arrived, and only paid after the plaintiff called his attention to the past due bills. ¡No interest was ever charged the defendant before. April 1, 1914, the plaintiff sent the defendant a bill, adding interest, and wrote him a note saying that they had charged interest. At that time the plaintiff directed its auditor to charge interest upon accounts. The jury evidently considered that the intention of the parties that the sixty days or the ninety days fixed as a due date was intended to indicate the time when the payment might be expected and that interest was not chargeable on accounts after they became due, but the matter was to be treated as an open account. In April there were items of the account in dispute and payment was, therefore, delayed. The statement in the letter of that date that interest was chargeable from the time the sixty days had expired was not necessarily binding upon the defendant.

We cannot say, under the stipulation and charge, considering the evidence, that it was not the practice between the parties to charge and pay interest, that the verdict of the jury is against the evidence to such an extents requires a reversal. We, therefore, conclude the judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.'  