
    Van Rensselaer, &c. executors vs. Jewett.
    Where a debtor is in default for not paying money, delivering property, or rendering services, in pursuance of his contract, he is chargeable with interest from the time of default, on the specified amount of money, or the value of the property or services, at the time they should have been paid or rendered.
    Accordingly, in an action of covenant for rent, held, that interest was recoverable as matter of law from the time the rent fell due, although it was payable in wheat and services, the value of which was unliquidated by the contract.
    
    A motion for a nonsuit at the circuit is properly denied where the plaintiff is entitled to recover anything, although it be but nominal damages.
    Appeal from the supreme court, where the action was brought by the executors of the will of Stephen Van Rensselaer, deceased, against Jewett, upon a covenant to pay rent. On the trial at the Albany circuit in October, 1844, before Parker, circuit judge, the case was this:—By an indenture dated December 8th, 1813, the said Stephen Van Rensselae. conveyed unto one William Davis, his heirs and assigns, one hundred and eighty-eight acres of land, situated in Guilderland, in the county of Albany, reserving the yearly rent of eighteen bushels of wheat, four fat hens, and one day’s service with carriage and horses, which by the same indenture the said William Davis covenanted to pay. This indenture having been read in evidence, the plaintiffs proved an assignment to the defendant made in 1834, of eighty-four acres of the same premises. The plaintiffs then further proved that the amount of rent due for the portion of the premises so assigned to the defendant for the years 1835, 1836, 1837 and 1838, including interest, was at the time of the trial $82,18. In this calculation, the defendant was charged in the proportion that the number of acres assigned to him bore to the whole number included in the conveyance, and with interest upon each item of rent from the time, or about the time, when it fell due. It appeared that the value of the wheat, &c., fluctuated in the different years above mentioned. The defendant objected to the proof and- allowance of interest, but the circuit judge overruled the objection, and the defendant excepted. The defendant’s counsel also moved for a nonsuit on the grounds; 1. That the reservation of the rents was void; 2. That there was no evidence of the relative value of the lands assigned to the defendant and the remainder of the premises. The motion was denied and the defendant excepted. The jury, by the direction of the court, gave their verdict in the plaintiff’s favor for $82,18 damages. The supreme court refused a motion for a new trial made on bill of exceptions, and the defendant appealed to this court.
    
      R. W. Peckham, for appellant.
    1. The court erred in deciding that the rent should be apportioned according to the number of acres assigned, and not according to the relative value of the land. (Van Rensselaer v. Bradley, 3 Denio, 143 ; 3 Kent’s Com. 469, 470; Farley v. Craig, 6 Halst. 262; Gilbert on Rents, 163.)
    II. The court erred in deciding that the plaintiff below was entitled to recover interest on each item of rent reserved, viz. on the wheat, the fat fowls, and the work and labor with carriage and horses Interest, as such, is not recoverable on an unliquidated demand. (Anonymous, 1 John. R. 315; Ferrers v. Ferrers, Cases Temp. Talbot, p. 2; Gilpins v. Consequa, 1 Pet. C. C. Rep. 95; Holiday v. Marshall, 7 John R. 211; Rensselaer Glass Factory v. Peid, 5 Cowen, 599, per Chancellor Sandford, Spencer, senator, and Colden, senator; Still v. Hall, 20 Wend. 52, per Cowen, J.; Campbell v. Mercer, 6 John.C. R. 21 ; Donell v. Stephens, 4 M’Cord, 59, per Johnson, J.; Ex’rs of Van Rensselaer v. Ex’rs of Plainer, 1 John. 276 ; Clark v. Barlow, 4 id. 183 ; 6 id. 45 ; 2 Phil. Ev. 122 ; 2 Stark. Ev. 6th Am. ed. 419.) The value of the wheat, of the service, and of the hens, was open to inquiry before the jury ; and wholly unliquidated till found by them.
    
      N. Hill,jr. for respondent.
    I. The question as to the manner of apportioning in cases like the present, was not raised at the trial, except by way of motion for a nonsuit, and the motion was properly overruled.
    The respondent, having proved the covenant to pay rent, &c. and the breach, made out a cause of action, for which he is entitled to recover nominal damages at least. (3 Black. Com. 397, 8; 2 Hill, 644.) A motion for a nonsuit can never be granted where a cause of action, however trifling, is either proved or admitted by the pleadings. (Cowen & Hill’s Notes, 450, 466; 2 Hill, 644; 3 Bl. Com. 397-8.)
    II. But even if the question of apportionment was properly raised, the rule contended for by the respondent at the trial was correct.
    There was no evidence given at the trial tending to show that the several parcels differed in value ; and in such cases the court and jury must act upon the presumption that the parcels are of equal value. (Viner’s Abr. tit. Rent (P. a.); 25 Wend. 456 ; Brownl. Rep. 186; Woodf. Land, and Ten. 253, 2d ed.; Cro. Jac. 160.)
    III. The circuit judge committed no error in respect to the question of interest. (1.) There is no difference between a demand for rent and other demands, so far as the right to interest is concerned. (4 Whart. Rep. 516; 3 Dana’s Rep. 31; 6 B Monroe, 462; 4 John. Hep. 183; 6 Gill &John. 383, 386.) (2.) The right to interest on rent payable in wheat, &c. on a given day, has been expressly recognized and adjudged in seveial American cases. 4 Wend. 313; Addison’s Rep. 346; 11 Serg. Rawle, 452; Van Rensselaer v. Jones, 2 Barb. Rep. 643.) (3.) These cases proceed upon the true principle on which the right to interest depends, viz: the implied obligation of every man to indemnify or compensate for his illegal acts or omissions. And they therefore recognize no distinction between demands for a stipulated amount of money, and those where the amount is to be ascertained by reference to the state of the market. (1 Am. Lead. Cas. 345, note; 4 Metc. Rep. 320, 1; 12 N. Hamp. Rep. 481; 22 Pick. 291, 294; 3 Carr. Payne, 496; 3 Taunt. 166; 2 Bos. Pull. 337; 7 Hill, 69.) (4.) The same principle has been acted upon by the American courts in all analogous cases. They proceed upon the idea of default, and give interest, by way of compensation, from the time when the default occurred, whether the demand be for a sum stipulated, or depending upon the state of the market. Accordingly, where money or a chattel is due on special contract, at a day certain, for a consideration paid, interest is allowed from the day, by way of compensation for default. (9 Pick. 385, 6; 1 Conn. Rep. 32, 33; 1 Grat. Rep. 365, 389, 390; 15 Pick. 206, 7; 5 Cowen’s Rep. 144.) The same rule applies to accounts for goods sold, work done, &c. where a time of payment is fixed either by express or implied agreement. (1 Am. Lead. Cas. 354, 5, note; 4 Dallas’ Rep. 289 ; 8 Verm,. Rep. 258; 6 Cow-en’s Rep. 193; 3 id. 426; 3 Taunt. Rep. 160; 2 Bos. Pull. 337.) So where no time of payment is fixed, and there has been a special demand, interest is allowed from the day of demand. (1 Am. Lead. Cas. 351, note; 12 N. Hamp. Rep. 481 ; 22 Pick. 291 ; 2 Watts §• Serg. 128 ; 22 Maine Rep. 116; 2 Gallison’s Rep. 45.) And where no special demand is shown, interest is allowed from the commencement of the suit, that being a legal demand. 1 Am. Lead. Cas. 354, 5, note; 11 Wend. 484.) On the same principle the law allows interest on the value, in trover, from the time of conversion. (7 Wend. 354, 358; 3 Camp. Rep. 477 ; 4 Pick. 466; 4 Cowen, 53.) (5.) The above cases deny that the mere fact of the demand being 
      unliquidated in the ordinary sense, is a reason for not allowing interest after default. They show moreover that the allowance of interest, where the default is clearly proved, is to be directed by the court, as matter of law¿ Other cases hold that interest is allowable on unliquidated demands, but intimate that the allowance is in the discretion of the jury. (1 John. Rep. ,315; 5 Cowen, 587; 3 Wend. 356 ; 2 John. Rep. 280 ; 8 id. 446.) (6.) There is no necessary conflict in principle between the cases above cited, and those which say that interest is not allowable on open and unliquidated accounts ; for the term open indicates that the implied period of credit is still running, and that the debtor is therefore not in default. (1 Coxe (N. J.) Rep. 176 ; 6 Cowen, 193 ; 3 id. 426 ; 12 N. Hamp. Rep. 481; 1 Am. Lead. Cas. 354, note.) (7.) The demand in the present case is not uncertain in the sense which forbids the allowance of interest, it being sufficiently certain to put the appellant in default for not paying it at the day, and to authorize the respondent to maintain an action of debt. (2 Hill, 648 ; Fitzh. Nat. Brev. 119, H.; Comyn’s Dig. tit. Debt (A. 5); 4 Leon. Rep. 46 ; 3 id. 260; 18 Pick. 231; 10 id. 178 ; 10 Yerg. 452 ; 6 Barn. Cress. 385.) (8.) None of the above cases decide that the allowance of interest is ever to be left to the discretion of the jury, though a few of them intimate it. Where the facts are ascertained and undisputed, as in the present case, the right to interest must, it is submitted, depend upon the law, and not upon the discretion of the jury. (Broom’s Leg. Max. 43, 4; 1 Am. Lead. Cas. 352; 9 Pick. 385.)
   Bronson, J.

It is unnecessary to inquire what should have been the rule in apportioning the rent; for as the proof stood when the motion for a nonsuit was made, the plaintiff was clearly entitled to recover something, and the motion was therefore properly overruled. The question was not raised in any other form than by the motion for a nonsuit.

The only question is on the allowance of interest. The pay. ment was not to bemade in money, nor was a specified sum to be paid in any other way. The damages were unliquidated ; and there was no agreement for interest. As the authorities bearing on the question have been very fully considered by the supreme court in this, and another case which will be mentioned, it cannot be necessary to review them on the present occasion. It was decided in 1806, without assigning any reason for the judgment, that interest was not recoverable in a case of this kind. (Van Rensselaer v. Platner, 1 John. 276.) But since that time the supreme court has deliberately held, on three several occasions, including the present one, that interest is recoverable in such a case. (Lush v. Druse, 4 Wend. 313; Van Rensselaer v. Jones, 2 Barb. 643.) The principle to be extracted from these decisions may be stated as follows : Whenever a debtor is in default for not paying money, delivering property, or rendering services in pursuance of his contract, justice requires that he should indemnify the creditor for the wrong which has been done him; and a just indemnity, though it may sometimes be more, can never be less, than the specified amount of money, or the value of the property or services at the time they should have been paid or rendered, with interest from the time of the default until the obligation is discharged. And if the creditor is obliged to resort to the courts for redress, ne ought, in all such cases, to recover interest, in addition to the debt, by way of damages. It is true that on an agreement like the one under consideration, the amount of the debt can only ne ascertained by an inquiry concerning the value of the property and services. But the value can be ascertained; and.when that has been done, the creditor, as a question of principle, is' just as plainly entitled to interest after the default, as he would be if the like sum had been payable in money. The English courts do not allow interest in such cases; and I feel some difficulty in saying that it can be allowed here, without the aid of an act of the legislature to authorize it. But the courts in this and other states have for many years been tending to the conclusion which we have finally reached, that a man who breaks his contract to pay a debt, whether the payment was to be made in money, or in anything else, shall indemnify the creditor, so far as that can be done by adding interest to the amount ot damage which was sustained on the day of the breach. The rule is just in itself; and as it is now nearly nineteen years since the point was decided in favor of the creditor, and eight out of nine judges of the supreme court have, at different times, concurred in that opinion, we think the question should be re garded as settled.

New trial denied. 
      
      
        Livingston v. Miller, 11 N. Y. 80.
     