Opinion
September 13, 1962.
Practice — Verdict — Molding — Power of appellate court — Addition of interest — Right to interest upon money unlawfully withheld.
1. The appellate court may in a proper case mold a verdict, increasing the amount of it by adding interest which is owing.
2. Where payment of a fixed sum of money is unlawfully withheld, interest is due from the time when it became the duty of debtor to discharge the debt.
3. In an action of assumpsit to recover a deposit made during negotiations for the purchase of a business, in which it appeared that defendant unjustly refused repayment of the deposit money; that the testimony was definite that a demand for repayment was made upon defendant within a certain period, but the actual date of the demand was indefinite; that the trial judge, sitting without a jury, erroneously found for defendant; and that the appellate court entered an order reversing the judgment entered on the finding and entering judgment n.o.v. for plaintiff; it was Held upon petition of plaintiff that the original order of the appellate court should be amended by providing for the entry of judgment n.o.v. for plaintiff with interest from the date when service of the summons in assumpsit was made.
Petition for amendment of order of Superior Court, appeal, No. 89, Oct. T., 1962, from judgment of County Court of Philadelphia, July T., 1958, No. 784, in case of Joseph Arcuri v. Meyer Weiss. Order amended.
Reporter's Note: The original opinion and order in this case are reported at 198 Pa. Super. 506.
An opinion and order in this case was handed down on June 13, 1962. The order read as follows: "Judgment reversed and judgment n.o.v. entered for appellant." A petition to the Supreme Court for allocatur on behalf of the appellee was denied. A petition by Joseph Arcuri, appellant, was filed on June 18, 1962, entitled "Appellant's Petition for Clarification in the Matter of Interest". It was brought under Rule 64 of this Court which provides for "Petitions for further costs and damages" and was brought within the required ten-day period. No answer to this petition was filed by the appellee. The petition prayed for an amendment of our order to include interest from June 1, 1958 to June 13, 1962.
The law seems clear that the appellate courts have authority to mold a verdict by adding interest. Samuels v. California Ins. Co., 192 Pa. Super. 484, 490. "When interest is not expressly provided for, or when no date for payment of the principal obligation is set, it is not easy to decide precisely when interest shall begin to run. Basically it is never demandable unless money be unlawfully withheld . . . . Then it is due and interest runs from the date of withholding." Peyton v. Margiotti, 398 Pa. 86, 94, 156 A. 865 (1959). And this case also held that the court may mold a verdict by increasing the amount of it by adding interest which is owing.
"Interest `is completely due, wherever a liquidated sum of money is unjustly withheld. It is a legal and uniform rate of damages allowed, in the absence of any express contract, when payment is withheld, after it has become the duty of the debtor to discharge the debt'." Nagle Eng. Boiler Wks. v. Erie, supra, at page 165.
Paragraph 4 of the complaint in this case sets forth:
"4. The plaintiff then demanded from the defendant the amount of Five hundred dollars ($500.00) which the plaintiff entrusted to the defendant pending the decision to enter into an agreement. The defendant has refused and refuses to turn over the money.
"WHEREFORE, Plaintiff demands judgment against defendant in the amount of Five Hundred Dollars ($500.00), plus interest from May 1, 1958." The defendant's answer to this allegation reads as follows: "4. Demand admitted, liability denied, for the reasons herein set forth."
Although this admission seems to fix May 1, 1958 as the date when the demand was made, the record itself indicates that it may have been a later date and the appellant in his petition asks interest from June 1, 1958. The testimony is definite that a demand was made sometime between April and August of 1958, but the actual date of the demand is indefinite. The service of summons in assumpsit was made July 17, 1958 and although the complaint was not filed until August 6, 1958, there is no doubt that the appellee was on notice of the demand for the return of the Five Hundred ($500) Dollars as of the time of the service of the summons.
AND NOW, September 13, 1962, the order made by this Court in its opinion filed June 13, 1962, is amended to read as follows: Judgment reversed and judgment n.o.v. entered for the appellant with interest from July 17, 1958.