
    
      M. Dotterer, Ez'ix of Thomas Dotterer, vs. W. J. Bennett.
    
    On quantum meruit for so much as plaintiff reasonabhi deserved to have for a steam engine which he had agreed in writing, for a cel tain price, to make and attach to defendant’s mill, without stipulation as 10 the time of payment — held, that the jury could not give the plaintiff interest, eo nomine, on the amount of their verdict from the time the engine was delivered.
    
      Before Evans, J. at Charleston, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action for the price of a steam engine, which the testator of the plaintiff contracted to make for the defendant. He had not finished it at the time of his death, but it was after-wards finished and delivered, and the plaintiff claimed $2,000, which the witnesses thought was a reasonable price. The defendant produced a letter of the deceased, from which it appeared that Dotterer was to make an engine of a particular description for the price of $1,760, and to attach it to the mill, and claimed a deduction for certain sums which he had paid to workmen for doing this latter work, which he alleged Dotterer was, by the contract, to have done. It was proved by the plaintiff that many alterations and additions were made at the instance of the defendant, and that in fact the engine made was very different from that specified in the contract. The plaintiff contended that the contract had been waived, and that she was entitled to recover on the quantum meruit. I do not know what was in the declaration. I charged the jury that unless the contract had been, waived, they must find on it, allowing a reasonable price for the additions that had been made, and deducting for what Dotterer was bound to do by the contract, which had not been done. But if the contract had been abandoned, by the alterations and additions, then they would give the plaintiff the $2,000, which the witnesses said the engine alone was worth. But that if they found on the contract set out in the letter, then they should give interest on what was due. But if they thought the contract had been waived, then the plaintiff could only recover on the implied contract without interest. The jury found for tfie plaintiff $1,756, with interest from Jan. 1.1847, the time the engine was delivered. In doing this',T, presume they estimated the additions made to the engine by the defendant’s directions, were of equal value to the work omitted-in attaching-i-t to the mill.
    
      “ The defendant complains that the jury allowed interest, when the cause of action declared on is not an interest-bearing demand, and he would be right if the question of interest depends alone on the pleading, but this is not my view of the law. I incline to the opinion, the right to interest is more a question of evidence ; although there may be written evidence of a contract, yet the plaintiff is not always obliged to declare on it.
    “If the work be received and used by the defendant, the-plaintiff may declare on a quantum meruit, and the written evidence is then only used to shew the price to be paid ; or the only written evidence, as in this case, may be in the possession of the defendant, and the plaintiff may have no alternative but to go on the common counts. If the defendant does produce and claim to have the benefit of it, and the jury find on it, I can see no reason why interest should not be allowed as in other cases where there is written evidence of the contract.”
    
      The defendant appealed from so much of the verdict as allows interest, because the cause of action sued and declared on is not an interest-bearing demand, and under • the pleadings, the law and the testimony, the plaintiff is not entitled to recover interest.
    
      Campbell, for appellant,
    cited Johnson ads. Bennett, l Sp. 210. Phillips, contra, cited Barnard vs. Bartholomew, 22 Pick. 291; Cheves, 61.
   The opinion of the Court was delivered by

Withers, J.

According to our apprehension, this action proceeded upon a quantum meruit; $2,000 were claimed as the value of a steam engine, delivered, b.y.. those representing the estate of Dotterer, deceased, on th^HifTfdnuary, 1847. On the 18th December, 1845, the decease&mfM'djljjrp^ljting, with specification of particulars, to do thAtfork and coi|h,ecb the same to the mortice wheel then in us^ at tWdgifejidan^ saw mill, for $1,760. He proceeded towar¿'^l3^)exe(íílí^i}pf¿fHe work, but died before it was finished, wfí\n tííe^fpndanCjtrged upon the representatives of his estate thatlfehoulcfl^fe speedily completed. When done, the sum of $2000 was '’demaiftled, on an allegation that extra work had been done, or that the original specifications had been varied or superseded. The defendant claimed a considerable abatement for the expense of attaching the engine to his mill, and perhaps for some other work which he alleged should have been done by Dotterer. As late as June, 1850, he suggested Jhe mode of settlement thus: from the price of the contract and the extra work, as understood between us,” deduct the amount “ I have already paid towards the work,” and the balance he thought the true sum which he ought to pay and would promptly pay. For peace sake, however, he was willing to allow the entire bill, without items, as presented, and deduct therefrom his account of moneys actually paid for executing the contract and doing some of the very work charged in the bill, and the balance he would pay. This was not accepted.

We have then a case in which an article has been made and delivered and an action brought for what it was reasonably worth. The proposal, in writing, of Dotterer, in December, 1845 may be regarded as having been concurred in by Bennett for the time, .and by that a price was fixed, but no time of payment was specified. Each party insists, or admits, that it has been departed from. The verdict is on a quantum meruit, and interest is allowed, eo nomine, by the verdict, from the time of the delivery of the work. It is thus treated as a legal incident of the principal sum. The question is, whether this is sustainable.

A promise, in writing, to pay a sum of money at a certain time, and that is certain which can be rendered certain, is (according to our and other American decisions) a contract that carries interest as a legal incident. The proposition by Mr. Dotterer to perform certain work fora certain price, and the execution of the undertaking in such manner as to produce an action on the quantum meruit, does not seem to range itself under the rule above laid down.

It is true, also, that money had and received by the defendant to the use of the plaintiff, or paid and expended by the latter for the use of the defendant, will carry interest, ( ) but the recovery in this case could not have been on that footing.

In case of a contract by which a negro is purchased at the sale of an estate, the terms being that a note shall be given, due at a certain time, and bearing interest, it ha^been decided that, on a declaration for the value of the negro, without a count for interest, a verdict fbr the price agreed to be paid, with interest •eo nomine, according to the terms of sale, was sustainable: (b) the case was supposed to be equivalent to a count setting out the promise and the- refusal to give the note, in which case (it was said) “ all the authorities are that interest is recoverable.” In the case before us, we do not find any promise, verbal or written, or referring to one written, by which it was stipulated that interest should be paid, or an interest-bearing security given. It does not seem distinguishable from the common case in which an article is delivered, the product of mechanical labor, the price being originally agreed upon, but not the time of payment or any agreement for interest, and the vendor insisting that the special agreement, so far as it went, had been departed from or superseded, and a gross sum demanded, as the reasonable value, without interest charged even in the bill, of particulars. What we decide is, that in such a transaction the contract is not liquidated so that any given sum shall be said to be principal, payable at a day certain, by contract, and therefore drawing interest to it,' as a legal consequence or incident.- We do not mean to say that in fixing the amount of damages, the jury may not add to the true value of the article sold aud delivered a sum which shall- be measured by the legal rate of- interest from the time of delivery to the day of the verdict, and present the aggregate as the damages which the plaintiff shall have. It is one element in ascertaining damages from .which the jury, in many cases, cannot and ought not to be excluded. But it is quite a different thing to make a sum, itself damage, an interest bearing fund, and continuing to produce it even after verdict.

Accordingly a new trial is ordered in this case, unless the plaintiff shall remit the interest found for her in the verdict, and signify the same, upon the record, on or before the first Monday in March next.

O’Neall, Evans, Wardlaw and Frost, JJ. concurred.

Whitner, J. absent at the hearing.

Motion granted nisi. 
      
      
        (a) Marvin vs. McRae, Cheves, 61. (b) 2 Sp. 30.
     