
    ROBINSON against THE CORN EXCHANGE, &c. INSURANCE COMPANY.
    
      New York Superior Court ;
    
    
      General Term, May, 1863.
    Insurance.—Denial in Pleading.—Interest.—Measure oe Damages.
    Where insurers, having insured one who has a special property in goods, for account of whom it may concern, after a loss and abandonment intervene and recover a part of the goods, as they have a right to do, and receive the proceeds, without knowing the owner, the latter cannot, in an action against them for money had and received, recover interest thereon for the time elapsing before they had any notice of his claim.
    An allegation in the complaint that the defendants sold the plaintiffs’ property for a certain sum, and that they “ have had the use of, and interest upon, said money since it was received as aforesaid by the defendants for the plaintiffs’ use,” is sufficiently controverted by a denial in defendants’ answer that they sold the plaintiffs’ property, or that they received therefore any money whatever to the plaintiffs’ use.
    The right to interest in such a case is a question of law, not of fact. It is only in the class of cases where interest may be charged against a defendant as damages, that he has a right to have the jury pass upon the question.
    In such action the necessary expenses of the defendants, paid in recovering and selling the goods insured, are to be allowed to the defendants, to be deducted from the proceeds.
    Appeal by the plaintiffs from a judgment entered in their favor, on a verdict rendered by the jury pursuant to the direction of the court, on the.trial of the cause.
    The plaintiffs, Sliadrach Eobinson and Charles H. Cummings, sued for money had and received by the defendants to their use, alleging in the complaint that in 1854 the defendants sold a quantity of corn belonging to the plaintiffs, on account of the plaintiffs, and that the defendants received for it, in or about the' months of October and Hovember, 1854, for the use of the said plaintiffs, and for them, two thousand three hundred and twenty-six dollars and thirty-seven cents. That the plaintiffs have often requested the defendant to pay them, the plaintiffs, the said money thus received by the defendants, but the defend- „ ants have neglected and refused, and still neglect and refuse to do so, and that the said defendants have had the use of, and interest upon, said money since it was received as aforesaid by said defendants, for the plaintiffs’ use.
    Judgment was demanded for the sum, with interest, from Hovember, 1854.
    The cause was tried on the 18th day of June, 1861, before Chief Justice Boswobth and a jury.
    The facts proved were as follows :
    In September, 1854, the plaintiffs, by their "agent, shipped a quantity of corn at the city of Buffalo, on board of tow boats owned by Edmund Savage, consigned to H." H. Wolf & Co. in the city of Hew York. Savage effected an insurance on the-com in the defendants’ company. At Albany the corn was trans-shipped on board the barge Hudson, which, on its passage to Hew York, became disabled, and partly sunk. The defendants intervened to save the'corn from total loss, and got up a portion of it, which they sold at auction for the gross sum of two thousand three hundred and twenty-six dollars and thirty-seven cents. The expense of raising the barge to get at the corn, the freight from Castleton, where she sunk, to Hew York, and the charges for" taking out and selling the corn, amounted to seven hundred and sixty-nine dollars and fifty-five cents, leaving in the defendants’ hands as net proceeds, the sum of one thousand five hundred and fifty-six dollars and eighty-two cents.
    This was proved by a stipulation entered into between the parties, which stated that the defendants, in saving the com, paid certain sums specified for that purpose, but nothing was said in the stipulation, nor was there any other evidence as to these expenditures being reasonable or necessary.
    Edmund Savage commenced a suit against the defendants on his policy of insurance in 1855. In the complaint in that suit, Savage claimed to recover for a total loss; but there was no count in the complaint claiming the proceeds of the corn. That action was tiled in April, 1861, and Savage recovered the value of the corn, less the amount received by the defendants for the sale of the corn.
    On the 13th of March, I860, the plaintiffs demanded of the defendants payment of the sum received by them on the sale of the corn, which was refused.
    Upon the trial of the present action, the Chief Justice instructed the jury that the plaintiffs can only recover the net proceeds of the corn; and interest only from the 13th of March, 1860, the date of their demand; and he directed them to find a verdict accordingly for the plaintiffs.
    The plaintiffs’ counsel excepted to the charge of the judge, and the jury found a verdict for the plaintiffs for one thousand six hundred and ninety-four dollars and fifty-six cents, for which judgment was entered. The plaintiffs appealed.
    
      James Crombie, for the plaintiffs appellants.
    I. The plaintiffs were entitled to recover interest upon the net proceeds of the corn from the time the defendants received them. 1. Because the defendants had used the money, and had received the interest upon it, as is admitted in the pleadings. When a person uses another’s money, or derives interest therefrom, he is as much bound to pay interest thereon as he is the principal (1 Am. Lead. Cas., 358, and cases cited; Dodge v. Perkins, 9 Pick., 369; Miller v. Bank of Orleans, 5 Whar., 503). 2. As matter of law upon the facts, the plaintiffs were entitled to recover interest upon the net proceeds, (a.) Because the defendants sold the 'corn without their consent, and therefore without any right or authority to do so (2 Phil. Ins., 333, 335, and cases cited; 1 Am. Lead. Cas., 360, and cases cited; Greenley v. Hopkins, 10 Wend., 96 ; Chauncey v. Yeaton, 1 N. H., 151; American Ins. Co. v. Center, 4 Wend., 52; Bryant v. Commonwealth Ins. Co., 13 Pick., 553 ; Parson’s Merc. Law, 380). b. Because the defendants ought in good faith to have paid over the money received by them, as soon as it was received, without any demand therefor (Stacy et al. v. Graham, 14 N. Y. [4 Kern.], 492; Lynch v. De Viar, 3 Johns. Cas., 303; Pease v. Barber, 3 Caines, 266; Van Rensselaer v. Jewett, 5 Den., 135 ; 2 N. Y. [2 Comst.], 135; Mason v. Waite, 17 Mass., 560; 1 Dall., 313, 316; 1 Am. L. Cas., 341, 345. The pendency of the suit of Edward Savage upon the policy was no excuse for the nonpayment of the money, as he did not own the corn, and could not recover the money received for it.
    II. If the Court overruled the first point, then we submit that the judge erred in not submitting the question of interest to the jury (Stacy v. Graham, 14 N. Y. [4 Kern.], 492; 1 Am. L. Cas., 352; Van Rensselaer v. Jewett, 5 Den., 135 ; 1 Johns., 315; Watkinson v. Laughton, 8 Johns., 213; Richmond v. Bronson, 5 Den., 55).
    III. The plaintiffs were entitled to recover from the defendants the gross amount received by them for the corn.
    The defendants had no right to sell the plaintiffs’ corn without consulting them, under the circumstances detailed in the case. In order to excuse a sale, they should have made out a case of absolute necessity, in order to save the corn from destruction. Ho such necessity existed here. It appears from one of the items of expense, that they took a portion of the corn to Hew York. If they had time to do this, they could have notified' the plaintiffs (2 Phill. on Ins., 333, 335, and eases there cited).
    IY. At any rate, the question of the necessity and reasonableness of the defendants’ charges for expenses should have been left to the jury.
    
      T. C. T. Buckley, for defendants, respondents.
    I. The ruling of the judge, at the trial, on the subject of interest, was correct (Van Rensselaer v. Jewett, 2 Coms., 140; Sedgw. on Damages, Ed. 1858, 379 ; Phelps v. Bostwick, 22 Barb., 318 ; Williams v. Storrs, 6 Johns. Ch., 358; Harrington v. Hoggart, 1 Barn. & Adol., 577, 574). There was no proper demand prior to March 13th, 1860. The order from Savage, if complied with, would have been no bar to plaintiffs’ claim, as he was not their agent, and had no right to transfer the property in the corn.
    II. There is no admission or proof that defendants have employe’d the money in question, or derived any profit from its use. But the defendants, being mere stakeholders,' would not be liable for interest, even if they used the money (Jones v. Mallory, 22 Conn., 392).
    
      III. In no aspect of the case are defendants liable for the gross proceeds of the corn.
   By the Court.—Monell, J.

The only exceptions argued upon this appeal were to the charge of the judge, restricting the recovery to the net proceeds, and interest from the time the demand was made, and directing a verdict for such amount. The action for money had and received, is an equitable action, and the party must show he has equity on his side. The rule in England is, that interest is not recoverable in this action (Walker v. Constable, 1 Bos. & Pull., 307), but it is otherwise in this country (Pease v. Barber, 3 Caines, 266; People v. Gasherie, 9 Johns. R., 71; Gillet v. Van Rensselaer, 15 N. Y. R., 397). In this State interest is allowable where the .circumstances of the case show that the plaintiff is equitably . entitled to it.

The corn was rescued from total loss in October, 1854, and the-proceeds of the sale were received by the defendants in November, 1854. The insurance was effected by, and in the name of Edmund Savage, who sued the defendants upon the policy to recover as for a total loss. There does not appear to be any evidence in the case that, at any time previous .to the demand of the 13th of March, 1860, the defendants knew or had any reason to suppose the plaintiffs owned or had any interest whatever in the corn. We asked the plaintiffs’ counsel in vain to point us to any testimony, showing or tending to show such knowledge, or anything which was calculated to even put the defendants upon inquiry. We are therefore to assume, that the defendants were at all times ignorant of the right of the plaintiffs to the proceeds of the corn, until they demanded payment therefor. Indeed, until the determination of the suit upon the policy, in which Savage sought to recover as for a total loss of all the corn, no action would lie against the defendants for the proceeds of the corn sold, either by Savage, or the plaintiffs. Savage was liable to the plaintiffs, as the carrier of the corn, and a recovery upon the policy by him- as for a total loss would, indisputably, have entitled the defendants to retain, as their own, the proceeds of the corn sold. Until the extent of the defendants’ liability was fixed by the judgment in the suit of Savage against them, the plaintiffs could not call on the defendants for payment. This last action did not terminate until April 11th, 1861, when the jury, under the direction of the court, deducted from their verdict the net proceeds of the corn sold by the defendants.

It is at least questionable whether any recovery could be had in this action, for principal or interest, until the termination of the other suit in April, 1861.

There is nothing in the circumstances of this case, which upon the principle of ex aequo et bono, required the defendants to pay the money to the plaintiffs, or to any other party, until their right to retain it was determined in the other suit. And even if this were not so, and the defendants were mere depositors of the money, they could not in conscience be called upon to pay either principal or interest until it was demanded of them. In that view they were mere trustees or bailors, who are never, except under special contract, chargable with interest (Utica Bank v. Van Grieson, 18 Johns. R., 485).

I am therefore of the opinion that the charge of the judge, if anything, was too favorable to the plaintiffs; but, as the defendants have not appealed, the judgment cannot be disturbed for that reason, and the plaintiffs cannot object.

There is no force in the argument that by the pleadings the defendants admitted that they had had the use of the money, and of the interest upon it since they received it. The denial in the defendant’s answer, that they sold the plaintiff’s corn, or that they received therefor any money whatever to the plaintiffs’ use, is a sufficient denial that they had the use of the money or of the interest upon it.

The denial of the substantive cause of action is enough to controvert all the mere incidents to it. Besides, the allegation in the complaint is equivocal, and would be true, if the defendants had had the use of the money for one day and no more before suit brought.

In rescuing the corn, and making sale thereof, the defendants paid from the gross proceeds necessary expenses, which they ■ were allowed to retain under the ruling of the court. That the defendants had a right to intervene to save the cargo from total loss is not disputed; and even if they had no right to sell without giving- notice to the plaintiffs, there is nothing to show that they had any knowledge of the plaintiffs whatever. As the action is an equitable one, for money received to the use of the plaintiffs, there is no principle in law or morals which should make the defendants liable for any more than they actually received. Therefore, the necessary expenses paid in raising and selling the corn, were properly allowed to be retained by the defendants.

The right to recover interest in a case of this kind, is a question of law, and not of fact, and the judge properly refused to submit it to the jury. Interest is the incident to a debt, and the law fixes the time when it begins to accrue. It is only in the class of cases where interest may be charged against a defendant as damages, that the jury has a right to pass upon the question (Richmond v. Bronson, 5 Denio, 55).

Had there been any evidence .impeaching the reasonableness of the expenses incurred in rescuing and selling the corn, it would probably have been error to have taken that question from the jury. But there is no such evidence; and had the . jury, upon the question being submitted to them, found,' under the evidence, that the expenses were unreasonable, the court would have set the verdict aside, as contrary to the evidence.

There was, therefore, nothing in the case upon which it was necessary for the jury to deliberate; consequently,, there was no error in directing a verdict for the plaintiff.

The judgment should be affirmed. 
      
       Present, Barbour and Monell, JJ.
     