
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Shoolbred, Assignee, &c. v. Elliott.
    In ’a lease for years, it was agreed between the parties, that at .the end of the term, certain buddings, to be erected by the lessee, should be fairly valued at a cash price: and the lessor covenanted to pay the value to the lessees, ortheir assigns; or, if it were not convenient to pay, that the premises should be leased, and the rents paid to the lessees, or their assigns, until the value of the buildings was paid. The lessor did not pay the value, but permitted tbe rents to be paid to the lessees, or their assignee- Held, that the lessees, or tneir assignee, were not in-titled to interest until the value of the buildings was paid by the rents.
    Interest is not recoverable unless stipulated by contract, or by way of damages for a breach of contract. Where the contract is in the alternative, mere inequality is not a -ground for the allowance of interest, where it is not stipulated, and there has been no breach of thecontract.
    Demurrer, determined by Johnson, J. m Charleston, in favor of the defendant; to reverse which determination the present motion was submitted. The case, brought to the view of the court by the pleadings, was this : The defendant, by a certain deed dated Au-Sust 30, 1789, leased to Morrison & Greenhill, whose assignee the plaintiff is, a lot of land m Charleston, for nine years, at the yeariy rent oí JS18, sterling, and to pay the taxes. Morrisun & Greenhill therein covenant to build, tad completely finish, on the premises, a dwelling house, kitchen, &c.; and at the expiration of the nine years, to surrender the premises and buildings to the defendant, her executors, &c. And it was agreed by and between the parties, that at the expiration of the nine years, the buildings to be erected should be fairly valued at a cash price, by persons chosen, &c. And the defendant agreed to pay to Morrison & Greenhill, or one of them, or their executors, &c. or assigns, the estimated value of the buildings. And if it should not. be convenient for her then to pay the same, that the premises should be leased out under her direction, and the rents paid to. Morrison & Green, hill, or their assigns, until the said estimated value of the said buildings should be paid. In 1798, the buildings erected pursuant to the abovementioned contract, were valued by persons indifferently chosen by the parties, and estimated at £1387, Gs. 6d. The defendant, Miss Elliott, did not pay the same, nut chose to avail herself of the proviso in the deed, which obliges the plaintiff to raise the same out of the rents and profits of the premises. The ques. tion arising out of the case was, whether the plaintiffs were inlitled to interest upon the sum at which the buildings were valued, from the time it was ascertained, or not.
    Pringle, for the plaintiffs,
    contended, that upon the valuation being made at the expiration of the term, the estimated sum was a debt liquidated, and payable immediately. The defendant, how. ever, had an election to pay the debt at once, or to postpone the payment, and let the plaintiffs collect the same from the accruing rents. The valuation being “ at a cash price,” shews clearly that it was the intent of the parties, that it should be paid at once, unless the defendant should chose the other alternative, in which case, as this was for her benefit, the plaintiffs, in point of fairness and reciprocity, should have an equivalent for. the delay of payment, and being kept out of the use of the money. This equivalent should be equal to logal interest. If (be plaintiffs are not allowed interest, it will take several years to pay the valuation out of the rents, which cannot be regarded as a reasonable equivalent or compengation. '
    Parker, contra.
    The defendant had a clear election, either to 
      b&vance the appraised sum, if it suited her, or if it did not, to insist bn the appraised sUm being paid out of the rents. There is nothing said about interest in the contract. The defendant is not personally liable. Interest is not recoverable, unless stipulated to be paid by the Contract, or by way of damages for a breach of contract. In the latter case, it is only the measure of damages. In this case, interest cannot be claimed on either ground. To allow a compensation, as interest, would ,be varying the contract. The ,im. equality of the contract is not a sufficient reason to authorize the court to alter it. Even in equity it.cannot be done, simply on .this ground. The contract is clear and certain, and interest .cannot be allowed, by any construction, as being intended to-be included there, in ; and the maxim, « ubi in, verbis nulla ambiguitas est, ibi nulla eonstructio contra verba fienda estf applies. When the deed says that the rent shall be received by the lessee, in discharge of the ap. praised sum, it is contradictory to say, that it shall be applied to the payment of interest on that sum, m the first instance. The words, “ cash price,” used in the contract, furnish scarcely a shadow of a presumption, that interest was intended. These words were pro* bably used without any relation to interest, and merely to fix the real value of the buildings, by the most certain standard. Interest not being mentioned expressly, there is good reason to suppose, it was not intended to be inserted in the contract. A deed cannot be varied by parol evidence; nor ought it to be by the surmises of the court, where there is nothing doubtful or ambiguous in it. In. terest cannot be recovered by way of damages, because the contract, on the part of the defendant, has not been violated. The rents have not been withheld. The demurrer admits the regular receipt of the rents by the piaintiff. There is not any personal contract on the part of the defendant to pay tht appraised sum, even with the rents ; but the contract is, that Morrison & Gi eenhill may receive, &c. This amounts to a covenant on the part of the defend, ant, that she will not prevent them from leceiving, until the appraised sum shall be satisfied.
   The court

were of opinion, that the plaintiffs were not intitled to interest, for the reasons urged by the defendant’s counsel: and confirmed the judgment of the district court.

Present, Grimke, Waties, Tbezevant, and Bbevabd, Justices.  