1 Ilsley v. Jewett, 2 Met. 168; Gibbs v. Bryant, 1 Pick. 118; Rensselaer Glass Factory v. Reid, 5 Cow. 601; Winthrop v. Carleton, 12
Mass. 4; Ekins v. East India Co., 1 P. W. 396, upon default of the principal, pay his debt, he may recover interest from the day of payment.1 So, also, where the plaintiff agreed to build a house for the defendant, the whole expense of which, over £300, the defendant agreed to pay, and a larger sum was expended, of which the plaintiff claimed to recover the overplus and interest thereupon, it was held that interest was allowable as claimed, it being, due upon money advanced for the use of the defendant.2
§ 1482. In case one of several partners have advanced capital to the concern, interest will be allowed when there is an agreement or understanding to that effect.3 But in the absence of any evidence of such an understanding, whether interest will be allowed is not clearly settled. It has been held in America that neither partner in such case will be entitled to interest on advances before a general settlement or dissolution;4 but a contrary opinion has been intimated in a late case by an eminent English judge.5
§ 1483. In the next place, a contract to pay interest is implied whenever there is a liquidated claim or account, of which there has been a demand or notice. No interest is ever allowed upon an open and running account,6 but as soon as the account is stated and rendered to the debtor, and no objection is made thereto by him, interest begins to run.7
1 IIsley v. Jewett, 2 Met. 168.
2 Craven v. Tickell, 1 Ves. Jr. 62. See, also, Campbell v. Mesier, 6 Johns. Ch. 21; Dilworth v. Sinderling, 1 Binney, 494; Liotard v. Graves, 3 Caines, 238; Wood v. Robbins, 11 Mass. 506.
3 Hodges v. Parker, 17 Vt. 242; Winsor v. Savage, 9 Met. 346; Mil-laudon v. Sylvestre, 8 La. 262.
4 Lee v. Lashbrooke, 8 Dana, 214; Jones v. Jones, 1 Iredell, Eq. 332; Honore v. Colmesnil, 7 Dana, 199; Waggoner v. Gray, 2 H. & Mun. 603; Dexter v. Arnold, 3 Mason, 289.
5 Millar v. Craig, 6 Beavan, 433. See, also, as to this point, Hodges v. Parker, 17 Vt. 212; Stonghton v. Lynch, 1 Johns. Ch. 467; Beacham v. Eckford, 2 Sandf. Ch. 116.
6 Holliday v. Marshall, 7 Johns. 213; Newell v. Griswold, 6 Ib. 45; Anon.,l Ib. 315; Reabr. McAlister, 8 Wend. 109; Brewer v. Tyringham, 12 Pick. 517; Esterly v. Cole, 3 Comst. 502.
7 See Prestridge v. Irwin, 46 Ala. 653 (1871), holding that in an ac count between merchants interest begins from the date of the last item. The English authorities are exceedingly contradictory, and no rule can agree. It is a well settled rule that where a trustee speculates with the trust funds, he may be held to profits or interest at the option of the cestui que trust.1
And this rule stands upon the plain ground that the acceptance of the account without objection is an acknowledgment that the debt is due then, and every delay is, of course, a default of payment for which interest ought to run in like manner as if the debt were payable on a specific day.1 So, also, the demand of payment of an unsettled claim which is not disputed might entitle the party making it to interest from the time of the demand.
§ 1484. So, also, a contract to pay interest is implied whenever money belonging to another person has been used. As where an agent pays the money of his principal into the hands of his banker, and uses it as his own.2 So, also, the same rule governs where executors or assignees apply the money which they hold as trustees, to their own use.3 In respect of this rule, the English and American authorities be said to be definitely settled; but the preponderance of opinion seems to affirm the doctrine that no interest runs upon any account, although it be liquidated or rendered, or demand be made thereof. De Havilland v. Bowerbank, 1 Camp. 50, and note; Page v. Newman, 9 B. & C. 381. See, also, Gordon v. Swan, 2 Camp. 429, note; De Bernales v. Fuller, Ib. 427. The case of Boddam v. Riley, 2 Bro. Ch. Ca3. 3, decides that an account, after it is liquidated and rendered, creates an implied con-tract for interest thenceforward, because, if it be not paid then, the debtor is guilty of a default. This case was affirmed upon appeal to the House of Lords. So, also, in Blaney v. Hendricks, 2 W. Bl. 761; 3 Wils. 206. Interest was held to be due on an account stated from the time that it was liquidated. But see the remarks of Lord Ellenborough on this last cited case, in Calton v. Bragg, 15 East, 227.
1 Gammell v. Skinner, 2 Gall. 45; Walden v. Sherburne, 15 Johns. 424; Kane v. Smith, 12 Ib. 156; Barnard v. Bartholomew, 22 Pick. 291; Dodge v. Perkins, 9 lb. 3S9; Rensselaer Glass Co. v. Reid, 5 Cowen, 587; King v. Diehl, 9 Serg. & R. 409; Boston & Sandwich Glass Co. v. Boston, 4 Met. 181.
2 In general, an agent holding money of his principal is not liable for interest. Miller v. Clark, 5 Lans. 388 (1871).
3 Rogers v. Boehm, 2 Esp. 702; Treves v. Townshend, 1 Bro. Ch. Cas. 384; Franklin v. Frith, 3 Ib. 433; Wyman v. Hubbard, 13 Mass. 232; Adams v. Gale, 2 Atk. 106; De Havilland v. Bowerbank, 1 Camp. 50; Swindall v. Swindall, 8 Ired. Eq. 286; Davis v. Thorn, 6 Texas, 482; McCreeliss v. Hinkle, 17 Ala 459; Mathes v. Bennett, 1 Foster, 188. So, where an assignee puts trust funds, mixed with his own, in a bank where he receives interest on his own deposits. Hess's Estate, 68 Penn. St. 454 (1871).
§ 1485. These, however, are only particular instances in which an intention is implied on the part of the debtor to pay interest. But this rule is not restricted to these cases alone; it extends to every case in which the circumstances indicate a manifest intention on the part of the creditor to claim interest, and on the part of the debtor to accede to such a claim.
§ 1486. Where a contract is to be performed in the place where it is made, interest is payable according to the legal rate of such place.2 But where a contract reserving interest in general terms is made in one place to be performed in another, and the legal interest is different in the two places, interest will be reckoned according to the place of performance or payment, whether it be higher or lower there than at the place where the contract is made.3 If, therefore, a note be made in Canada, where interest is fixed at six per cent, to be paid in England, where it is fixed at four per cent, only the English interest could be claimed; but if the note were made in England to be paid in Canada, it would bear interest of six per cent.4 It has, however, been held that if the parties expressly stipulate that the rate of interest to be paid shall be according to the place of making, such an agreement is binding, although the interest in such place be greater than that allowed at the place of payment.1 Where interest is reserved