Young v. Godbe, 82 U.S. (15 Wall.) 562

plaintiff has been advanced to the defendant, in one caP another, evidence of what a person who had sett e an acc .g not subject with the defendant said that the defendant o > legal proof.

The fact that the court in allowing the evidence to go

them that they might consider it for what it was wor, .the case. ¡n the case

In a case where interest as a general thing is due (as ex. 9• ,

of an account stated), the fact that there may e no s a Dot ■where -the .account is settled and the transaction takes piac,

. iurv told ‘talter

p. 563

prevent the recovery of interest. In such a case interest at a reasonable rate, and conforming to the custom which obtains in the community in dealings of the same character, will be allowed by way of damages for unreasonably withholding an overdue account.

In error to the Supreme Court of the Territory of Utah. Godbe filed a complaint in the court below against Brigham Young, “ as trustee in trust of the Church of Jesus Christ, a religious association in the Territory of Utah,’' alleging an account stated by “said defendant” prior to February 12th, 1866, and upon such statement a balance of $10,020 “ due from said defendant;” a payment of $5000, May 30th, 1868, and praying judgment with interest at 10 per cent. “ by7 way of damages.”

The defendant demurred, assigning for cause that it did not sufficiently appear from the complaint whether the suit was against the defendant “ in his individual capacity or in his capacity as trustee in trust for the Church of Jesus Christ of Latter-Day Saints.” The demurrer was overruled. The defendant then pleaded that no account had ever been settled by him.as “ trustee in trust ” as alleged in the complaint, and that neither the sum stated in the complaint nor any other sum had been found due to the plaintiff from “ said defendant as said trustee.”

On the tiial evidence was given tending to show that the money alleged to have been advanced by the plaintiff had been advanced to Young in some capacity, and an account stated and credit given as alleged. In what capacity was e question on which the controversy turned; whether, as , >1»n complaint, to him “ as trustee in trust of the tho &C’’ ?r ykether as agent of a company known as wh' h eSeiet, rilgati°n and Canal Company;” a company thoC i 0I1t°^ w^ne88es swore was “so mixed up with them.he.dld not know the difference between vanp\ /v plamtlff 80Ught to prove that it had been ad-LettPraf0 Tg a8 “trU8tee in trust of the church,” &c.

The defendant having given evidence tending to show p. 564that the Irrigation and Canal Company had an office in what was known as the Council House, and that the “trustee in trust,” &c., had his at what was known as the President’s Office, and that these departments were separate and distinct from each other, and had a separate set of clerks,—the plaintiff brought one Armstrong, who testified that he was in 1857, and had been ever since, the bookkeeper of a firm known as Kimball & Lawrence, merchants in Salt Lake City; that they had an account of some $10,000 against the Deseret Irrigation and Canal Company; that Mr. Lawrence, one of the firm, took the account and went away with it, and in a short time returned “ stating to this witness that it had been settled by the ‘trustee in trust,’ by giving credit to a certain person on tithing, and that the transaction so appeared on the books of Kimball & Lawrence.” The defendant objected to all this evidence, for the reason “that it was not in rebuttal and therefore illegal.” The court overruled the objection (the defendant excepting) “and the testimony was permitted to go to the jury for what it was worth”

■ In charging, the court charged that if the jury should find for the plaintiff, they would find $5020, with interest on $10,020 from the day the account was rendered until the day of the payment of $5000, and from that date to the day of trial on the amount remaining due.

Verdict and judgment having gone for the plaintiff, t e admission of the evidence above mentioned and the instiuc tion to the jury were, among other matters, assigned or error.

Messrs. C. J. Hillier and Thomas Fitch, for the plaintiff in

error; no opposing counsel.

Mr. Justice DAVIS delivered the opinion of the court. The testimony of Armstrong, the bookkeepei of Kin & Lawrence, was objected to by the defendant for t ie! i that it was not in rebuttal, and therefore illega, court overruled the objection and permitted t ie to go to the jury for what it was worth.

p. 565

We are not prepared to say that Godbe could not rebut the case made by Young by showing that the affairs of the company were so connected with the church that, as one of the witnesses said, “ he did not know the difference between them.” But the evidence on this subject should not have been the declaration by one person of what another said. The fact that Young had settled the account of Kimball & Lawrence in the way he did was proper evidence to go to the jury, if Lawrence had testified to it, but Armstrong’s statement of what Lawrence told him was pure hearsay. Besides, the court on its own motion enlarged the scope of the evidence by directing the jury to consider it for what it was worth. This direction enabled the jury to take a wider range of the subject than they otherwise would, and naturally inclined them to consider the evidence as fixing the right of the plaintiff to recover from the defendant in the capacity in which he was sued.

On account of the error in admitting the testimony of Armstiong, and in indicating the effect which the jury 8 ould give to it, the judgment will have to be reversed.

But as the case goes back for a new trial, it is proper to y a word upon the subject of interest, which seems more an anything else to be the chief point of difference between parties. We can see no objection to the charge of the urt on this subject. If a debt ought to be paid at a par-ar time, and is not, owing to the default of the debtor, ere itor is entitled to interest from that time by way of mPen8ation for the delay in payment. And if the account ini e/ evidence went to show was the case here, interest begins to run at *once. ini? Td i.h-ere “ 110 law the Terri‘oi-y of Utah prescribvnrft. * interest in transactions like the one in contron and that’ therefore, no interest can be re-Btatnt. « thlS re8U.lt does not follo'v- If there 1» no dam r 16 8ubJec^’ interest will- be allowed by wray of -__ ?J_2t2^easonab]y withholding payment of an p. 566overdue account. The rate must be reasonable, and conform to the custom which obtains in the community in dealings of this character.

American Leading Cases, 5th edition, pp. 626 and 514.

Judgment reversed, and a venire de novo awarded.