— The question presented in this case has reference only to the interest recoverable. The suit was commenced after the first and second installments had been paid with interest, and before the third installment had become payable.
When a note is made payable with interest annually, whether by installments or not, the interest accruing before the whole of the principal becomes payable may be collected, if a suit be commenced to recover it before the whole of the principal becomes payable.
If no suit be commenced for that purpose until after that *77time, interest upon the interest, not paid from the time when it should have been paid, cannot be recovered in a suit for the principal and interest due upon the note. Hastings v. Wiswell, 8 Mass. 455; Doe v. Warren, 7 Greenl. 48; Wilcox v. Howland, 23 Pick. 167.
When the first and second installments were paid with interest on them, the defendant did not pay the interest on the installments or installment not then payable ; and he insists, that upon a'correct construction of the language used in the note, he was not required to do it; and that the words “ with interest to be paid annually,” have reference only to each particular installment requiring it to be paid with interest annually.
This construction supposes the intention of the parties as exhibited by the note to have been, that each installment should be paid annually with the interest accrued upon it. It would leave the words “to be paid annually,” wholly inoperative ; for the language before used provided, that the amount should be paid “ in three equal annual payments with interest.” The words “ to be paid annually,” must therefore be considered applicable to the interest on the whole sum requiring it to be paid annually.
It is also insisted, that the reception of the interest on the two first installments operated as a waiver of any claim to have the interest paid on the installment not then payable. The case, however, states, .that the annual interest was demanded and refused each year as it became payable. The indorsements only state, that the installments as they became payable, were paid with interest on them to that time.
Defendant defaulted.
Wells, Howard and Rice, J. J., concurred.