than 4 per cent. on the 75,000l.; and they cannot succeed in the present motion, except by shewing that the agreement was, not for 5 per cent., as declared upon, but for 4 per cent. The ground of the judgment in Clarke v. Gray, (whether the view there taken of the facts stated in the declaration was right or not,) was, that the provision limiting the liability of the carrier to 57. formed no part of the contract; and that, consequently, its being omitted in the declaration, constituted no variance in the statement of the contract.
Here, there can be no doubt with regard to the effect of the declaration.
In the anonymous case in Godbolt (a), a man, in consideration of marriage, promised to do three several things. For the non-performance of one of these, the promisee brought an action, alleging that the defendant, in consideration of marriage, promised him to perform that thing without mentioning the two other things. The defendant pleaded non assumpsit, modo et formâ ; and the opinion of the Court was, that it was a good issue; for, the contract being entire, if it be not a good plea (b), the defendant might be charged for the several things, that is, he might be subject to the three several actions, which cannot be, being but one contract by word: but it is otherwise of several contracts, in writing. Here, the promise is sought to be varied in evidence by the defendants. Were the construction contended for by the defendants the true one, the objection is not open to them upon this record; they must wait till they are sued for another half year. The defendants are in the same situation as if there had been a judgment by default upon this declaration, and a reference to the Master to compute the interest. That which the plaintiff now claims, he might have taken, without evidence, upon the judgment by default.
(b) i.e. a plea warranted by the state of the facts.
Then with respect to the merits of the objection; the money remains due on the agreement, and not on the mortgage which was contemplated. There is no analogy between the rights of an unpaid vendor, and those of a mortgagee with power of sale.
Talfourd, Serjt., on the same side. The defendants wish to treat the provision for reducing the interest to 4 per cent., as merely an addition to the contract which they admit by their plea. For the plaintiff it is, however, submitted, that this is an attempt to vary, by evidence, the contract admitted on the record. A contract to pay 5 per cent. must be essentially different from a contract to pay 4.
It lies upon the defendants to shew that the case has arisen upon which the interest was to be reduced: they are not entitled to claim a reduction of interest without proving that a mortgage has been executed.
R. V. Richards, on the same side. It is too late now to contend that the contract is not admitted by the payment of money into court. [Tindal C.J. Where the contract is special.]
Sir W. Follett, in support of his rule. Two points have been raised for the consideration of the Court. First, whether, in point of law, the plaintiff is entitled to recover the 20627. 10s. upon the true construction of these three contracts; and, secondly, whether supposing the defendants were not bound to pay this sum either at law or in equity, they are shut out from their defence by the payment of money into court. It is necessary to call the attention of the Court to the agreements, and to the form of the declaration. In the declaration the agreements are set out in the words of the parties, but, in doing that, a part of the second agreement is omitted. That omission was supplied for the purpose of shewing
the extent of damages. [Tindal C. J. The declaration
contains mutual promises (a) on the agreements.] The
interest is, by the agreement, to be reckoned from the
1st October 1825 until the day of payment, not until
payment. [Coltman J. You contend that that means
the day appointed for payment.] The contract is to
pay on a particular day. After the day of payment,
what interest the plaintiff seeks to recover is not claimed
on the contract, but by way of damages. The mode
in which the defendants were to pay, is material. Three
instalments of 100,000l. each were to be paid on par-
ticular days with interest; 75,000l. was to remain on
mortgage. In case of default in payment of the instal-
ments, the plaintiff had power to sell. The defendants
were bound to pay interest only so long as they re-
mained in possession of the estate, not if the plaintiff
sold under the power. [Erskine J. They were to pay
interest as long as they continued in possession of the
hereditaments and premises, or any part thereof.] The
trustees might sell the whole. The distinction between
interest made payable on particular days specified in
the contract, is distinctly laid down in a note to the
last edition of Wms. Saunders, where after noticing the
decision in Dickenson v. Harrison (b), that the principal
and interest in a mortgage debt are separable, the edi-
tors say,
"The usual covenant in a mortgage deed is,
to pay the principal and interest on a certain day, but
there is no covenant to pay interest after that day (c):
Therefore, in debt on such a deed, the interest, subsequent
to the day of default, must not be claimed as part of the
(a) The effect of the insertion of mutual promises seems to be, to fix the reciprocal subjects of those promises as that which constitutes the contract between the parties. It seems difficult to reconcile the ad
mission of the mutual promises
with the view presented on the
part of the defendants.
(b) 4 Price, 282.
(c) Here the covenant is, to pay interest upon the instalments until the day of payment.
debt, but as damages for the detention of the debt." (a)
In Atkinson v. Jones (b), Littledale J. says, "In the
common course of things, the proviso in a mortgage
is, for payment on a given day, which day is here post-
poned for several years from the execution of the mort-
gage. The interest up to that day is all that is made
payable by the deed of mortgage. If an action of debt
were brought on the deed, the declaration would be
only for the amount of principal and interest due up to
that day by the terms of the proviso. Any thing which
was recovered besides this, would be in the shape of
damages for the detention: the breach could be assigned
only for non-payment up to and on that day." So
here, after the day on which the last instalment was
made payable, the defendants would be liable for in-
terest, not, as before, upon the contract, but in the
nature of damages, to be calculated at the same rate of
interest which the parties had contracted to pay for the
period, during which, by the agreement of the parties, the
instalments were to remain unpaid. The defendants say,
Although true it is, that we agreed to pay as stated
in the declaration; true, that we entered into the second
agreement; true, that we entered into the third agree-
ment; yet, the plaintiff is not entitled to recover more
than the sum brought into court." For the plaintiff it
is objected, that we have no right to look at the subse-
quent part of the contract. But if the defendants had
pleaded non assumpsit, they could not have made out a
variance by producing that part of the contract; because
the mode of estimating the damages sustained by the
breach of the contract, is no part of the contract itself.
The defendants, by their plea, admit the special contract,
and every thing in the declaration which was necessary
to entitle the plaintiff to recover the money brought
(a) 1 Wms. Saund. 201 a. (n) (b) 2 Ad. & El. 439.
court. It is not contended, that the defendants can,
under the present plea, set up a different contract. In
Yate v. Willan, Lord Kenyon says (a),
"The payment
of money into court, on a special count, admits the con-
tract as there laid, but leaves the amount of the
damages, incurred by the breach of it, open to dispute."
In Clarke v. Gray (b), it was held, to be necessary to
set out the whole of the consideration of the promise
declared on, but not the whole of the contract. The
plea which the defendants have pleaded, does not there-
fore admit that the declaration has stated the whole of the
contract. The contract is, to pay on the 15th April,
1826, with interest from the 1st October, 1825. The
debt to be recovered would be the interest up to that
day; the subsequent interest would be merely damages.
Even the debt was a contingent debt; for, if the de-
fendants had been kept out of possession, they would
not not have been liable for interest. Then it was for
the jury (subject to the question, whether this is a case
within the statute,) to say, whether, under the circum-
stances of the particular case, they would give interest.
And it is observable, that the plaintiff, in case of non-
payment, had not only the power of selling but also
that of becoming himself the purchaser, and thus re-
taining the estate. It is said, that the question of re-
ducing the interest to 4 per cent., does not arise, until
it is shewn that the instalments were regularly paid.
That is not so; for, suppose the estate to have been sold
to pay the instalments, the plaintiffs would have been en-
titled to take 5 per cent. upon the instalment of 100,000%.,
and 50,000l.; but 4 only, upon the 75,000. By
the arrangement made as to the 75,000l., the parties
have shewn what is the rate of interest which ought to
be recovered.
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