Edward Douglass White

“ Spalding v. Mason
A preliminary objection has been advanced on behalf of the appellee against a review of the first judgment rendered by the general term, which determined the principles upon which the account was to be taken by the auditor. It is claimed that the appellants are concluded by the failure of the then defendant, Harvey Spalding, to appeal from the decree of the special term when an appeal had been taken by the complainant. ”

“ Innerarity, 6 How. 146, 154, considering and overruling an exception to an allowance of interest from the time certain payments had become due: 'It is a dictate of natural justice, and the law of every civilized country, that a man is bound in equity not only to perform his engagements, but also to repair all the damages that accrue naturally from their breach. * * * Every one who contracts to pay money on a certain day knows that, if he fails to fulfill his contract, he must pay the established rate of interest as damages for his nonperformance. ”

“ Hence it may correctly be said that such is the implied contract of the parties.'
It is no hardship for one who has had the use of money owing to another to be required to pay interest thereon from the time when the payment should have been made. Crescent Min. Co. v. Wasatch Min. Co., 151 U.S. 317, 323, 14 Sup. Ct. 348.
The circumstance that the complainant may have considered himself entitled to an account, and to receive a greater sum than was actually found to be due, does not affect complainant's right to the interest upon what was really due. ”

“ An interlocutory order or decree which involves the merits may be reviewed by the general term upon the appeal of a dissatisfied party without awaiting a final determination of the cause. It is not made obligatory upon a dissatisfied party to appeal because the other party has done so ”

“ As it is a matter, however, of mere interest, not affecting the real merits of the controversy, and which we think would have been corrected by the lower court, had its attention been called to it, the costs of this appeal must be borne by appellants. ”

“ Total ...................... $9,173 50 The contract did not contemplate a necessity for expenditures in connection with the collection of fees, as, on June 3, 1880, it was believed that drafts for the amounts of the difference claimed would be delivered to Spalding as attorney for the claimants, and that he would make his deduction of fees therefrom. ”