Opinion
March 1805.
The common selling price, and not the highest or the lowest, should be the guide of the jury in estimating the value of specific articles received by the defendant as agent of the plaintiff, and never delivered. [See Jones v. Harrison, 3 Hay. 92.]
The Act of 1786, 4, 3 [brought into the Code, 1945], is imperative on the courts in the cases mentioned in it. Other cases are left as they were at common law, by which the jury have an equitable power, and may, in the form of damages, give interest, if they think justice demands it. [Acc. Williams v. Inman, Gault Co., 5 Cold. 269.]
[ S. C., infra, 183.]
James Newel, of Virginia, gave his note to James Bryson for 1875 pounds of bar-iron. The defendant undertook to collect this note and account to the plaintiff. The plaintiff proved that the defendant had collected it. The defendant proved that bar-iron had sold low for cash, and insisted that the jury should estimate the value of the iron at the lowest cash price.
It was also contended that the jury could not give interest agreeably to the Act of Assembly 1786, c. 4.
The act declares that all bonds, bills, notes, bills of exchange, liquidated and settled accounts signed by the debtor, shall carry interest.
The common selling price, and not the lowest nor highest, ought to be the guide to the jury in estimating the value of the iron or other specific article.
The act respecting interest is a positive institution, and imperative upon the courts of law in allowing interest when the act has directed it. Other cases are left as they were at common law, where the jury have an equitable power, and may in the form of damages give interest if they think justice requires it; but it would seem just and consistent with legal principles that no man should be subject to damages derived from a consideration of interest unless the debtor knew precisely the debt he had to pay or the duty to be performed; where the debt or duty is uncertain no interest ought to be allowed. To authorize the jury to consider damages beyond the amount of what they may conceive due the demand, ought to be certain and specific, and not subject to controversy, as in mutual unsettled accounts, unless interest upon the balance was part of the original contract.
Vide 4 Dal. 289; Add. 138; Hard. 518; 2 Fonb. 423; Camp. N. P. 50, 129, 518; 3 Hen. Mun. 448; 3 N. Y. T. 284; 1 Hay. 5, 174; 1 Johns. 315; 6 Johns. 15; 1 Dall. 165, 315.