Richards v. Citizens Natural Gas Co.

Opinion,

Mb,. Justice Mitchell:

Interest as such is recoverable only where there is a failure to pay a liquidated sum due at a fixed day, and the debtor is in absolute default. It cannot, therefore, be recovered in actions of tort, or in actions of any kind where the damages are not in their nature capable of exact computation, both as to time and amount. In such cases the party chargeable cannot pay or make tender until both the time and the amount have been ascertained, and his default is not therefore of that absolute nature that necessarily involves interest for the delay. But *40 there are cases sounding in tort, and cases of unliquidated damages, where not only the principle on which the recovery is to be had is compensation, but where also the compensation can be measured by market value, or other definite standards. Such are cases of the unintentional conversion or destruction of property, etc. Into these cases the element of time may enter as an important factor, and the plaintiff will not be fully compensated unless he receive, not only the value of his property, but receive it, as nearly as may be, as of the date of his loss. Hence it is that the jury may allow additional damages, in the nature of interest, for the lapse of time. It is never interest as such, nor as a matter of right, but compensation for the delay, of which the rate of interest affords the fair legal measure.

These principles have been very recently affirmed by this Court in Penna. etc. R. Co. v. Ziemer, 124 Pa. 571, and Plymouth Tp. v. Graver, 125 Pa. 37; and, although, as said by our brother Clakk in the last case, there is some conflict in the decisions : Rairoad Co. v. Gesner, 20 Pa. 242; Del. etc. R. Co. v. Burson, 61 Pa. 380 ; Pittsb. S. Ry. Co. v. Taylor, 104 Pa. 306; and Allegheny City v. Campbell, 107 Pa. 530, it is not so much in regard to the principles, as in the mode of expression. The contest has been whether the allowance should be made or not; and the name by which it should be called, whether interest or compensation for delay, measured by the rate of interest, received little attention, and it was incautiously said that interest was or was not to be allowed. The distinction, however, is important, for failure to observe it leads to confusion, as in the present case. Interest is recoverable of right, but compensation for deferred payment in torts depends on the circumstances of each case. The plaintiff, may have set his damages so inordinately high as to have justified the defendant in refusing to pay, or in other ways the delay may be plaintiff’s fault; or, the liability of defendant may have arisen without fault, as in Weir v. Allegheny Co., 95 Pa. 413. In such cases the jury probably would not, and certainly ought not to make the allowance. It was said by Lewis, J., in Railroad Co. v. Gesner, 20 Pa. 242, “ the second exception raises the question whether interest can be allowed on the compensation from the time when the company took possession of the land.....A *41 purchaser in possession of land under articles is bound to pay interest, unless relieved by the equity of peculiar circumstances, upon the principle that a just compensation cannot be made without paying not only the value, but interest on the value to compensate for the delay. This is the rule, unless the delay has been caused by a party claiming the interest.” This was said in a ease of damages for the taking of land by eminent domain; but, notwithstanding some confusion of thought in the analogy of a purchase of land under articles of agreement, and some carelessness in the use of the term interest, it illustrates the true rule that in actions like the present, interest is not recoverable as such, and the allowance of compensation for delay depends on the circumstances, and must therefore be determined by the jury. The learned judge below inadvertently directed the jury to allow interest as a matter of law. This was a technical error, but as the amount is quite small, and the defendants in error have expressed their desire to yield it rather than have the controversy further prolonged, the judgment will not be reversed, but will be reduced by striking off the interest.

Judgment reduced nunc pro tunc, as of November 17, 1888, to 1383, and thereupon judgment affirmed.