In this case the quantity of wheat and its quality and description, with the time and place of delivery, were all specified in the lease, so that in these respects the contract was specific and certain. It was equally so as to the fowls and the service. What the lessee was bound to do annually, in return for the use of the laud demised, was therefore certain in specie, although wholly uncertain in value. This would depend upon the worth of wheat, hens and labor, on the first of February, in each year, and which, like the price of all vendible commodities, would be more or less variable and uncertain. This lease was made in 1813, in the midst of the late war with Great Britain, when produce and labor commanded very high prices. Since that time, prices have often fallen greatly below what they then were, as they may occasionly, have advanced even- beyond war prices. Such changes furnish no reason why the just value of the property and labor, for which the lessee or his assignee might be in default in any year, should not, in such case, be recovered against him; but they show the fluctuating nature of the demand, and the .entire *146uncertainty as to the amount of money which should, in any case, bé paid, in-liéu of the property and labor stipulated for by the Ieasé: In this action the plaintiffs claim; in money, the value of a certain quantity óf wheat; with a given number of fowls, and a certain amount of labor, as payable in different years, that is from 1835 to 1838, inclusive. Before. the jury could make any computation of interest, they would necessarily have to ascertain and determine the vahle of the property and labor, for which the defendant was in default in one of these years. The same thing would be equally necessary in each of the other years, for the valuation in one year would afford very little if any aid for another. As -there were three separate items for valuation in each year, there must have been twelve for the four years in question in the case. These valuations being made by the jury, it would be their duty; under the decision made at the trial of this cause, to add interest on the several sums so ascertained, and find for the plaintiffs the aggregate amount of said valuations and interest. Tedious as the process might be, a single legal proposition and no more, is involved in it, and that is the question whether interest is demandable as matter of strict legal right on damages which, until ascertained and determined by the jury on a trial, are wholly unliquidated. This question excludes all inquiry as to the discretionary power of jurors, to allow interest by way of damages in such a case, for here the point was ruled as one of strict law. This being the shape in which the proposition is presented, I shall examine it as one of that nature, and as wholly disconnected from any question as to the right of jurors, in any case, to allow interest as damages for the violation of a contract. And upon this, as a legal proposition, all the authorities, English and American, with a single exception, if Indeed that, when properly understood, is an exception, will, as I think, be found to agree. Their language is uniform, that interest is never demandable as matter of legal right, where the damages sought to be recovered áre unliquidated.
In an anonymous case, (1 John. 315,) being an action on a policy of insurance, to recover for a partial loss on a cargo, a *147question was raised whether interest was allowable, which was thus disposed of by the court. “ The general rule is, that interest is not to be recovered on unliquidated damages, or for an uncertain demand. Jurors have, in many cases, a discretion to allow interest by way of damages, according to the circum stances of the case, and this is a case in which that discretion may be exercised.” The rule of law laid down by the court in that case, is the principle on which Lord Chancellor Talbot proceeded in the case of Ferrers v. Ferrers, (Cases Temp Talbot, p. 2.) He said “ the arrears of an annuity or rent charge are never decreed to be paid with interest, but where the same is certain and fixed; and also where there is either a clause of entry, or nomine pcence, or some penalty upon the grantor which he must undergo, if the grantee sued at law, and which would oblige him to come into this court for relief; which the court will not grant but upon equal terms ; and those can be no other but decreeing the grantor to pay the arrears, with interest for the time during which the payment was withheld : but interest for the rents and profits of an estate was never decreed yet, the sum being entirely uncertain.” In Gil-pins v. Consequa, (Pet. C. C. Rep. 95,) the principle -was thus stated by Mr. Justice Washington. As to interest, that is a question generally in the discretion of a jury. But it is not agreeable to legal principles, to allow interest on unliquidated and contested claims, sounding so much in damages.” Holliday v. Marshall, (7 John. 211,) was an action of covenant, in which a question arose as to the value of certain buildings and improvements, for which, by the covenant, the defendant, was bound to pay. The plaintiff applied to the defendant to agree on the choice of indifferent persons to appraise the buildings and improvements, which he refused to do. The plaintiff thereupon procured three such persons to make the valuation, which they did, at 750 dollars. On the trial the plaintiff claimed interest on this sum from the time the defendant had notice of the appraisement. On this point the court said : “The plaintiff is not entitled to interest on the 750 dollars. The value of the improvements or amount of damages was uncertain ana *148unliquidated. Although the covenant provided for an appraisement of the improvements, in case the land was not sold to the plaintiff; yet the defendant was not a party to the appraisement. He refused to unite in it, and there is nothing in the covenant making an ex parte appraisement binding on the defendant. The value of the improvements was open to inquiry, at the trial; the plaintiff’s claim is, therefore, to be considered as resting in unliquidated damages, upon which interest is not recoverable.” Chancellor Sanford, in the Renss. Glass Fac. v. Reid, (5 Cowen, 599,) was equally direct and explicit. “ It seems to me,” he observed, “there is no difference whether the demand upon which interest is claimed, lie in account or in any thing else. This cannot be the criterion. If the demand itself be unliquidated, it cannot carry interest; and on the other hand, if it be liquidated it may.” . Precisely the same thing was stated by Cowen, J. in giving the opinion of the court in a more recent case, (Still v. Hall, 20 Wend. 52.) His remark was in these words: “ The principal would have stood in the light of an uncertain demand, to be settled by process of. law. On such demands interest is not allowed.” In Dorrill v. Stephens, (4 McCord, 59,) Johnson, J. said, “It is well settled that interest will not follow as a necessary legal consequence on an open unliquidated demand.” Similar extracts might be made to almost any extent; but these are quite sufficient, "where, at the utmost, a single case stands in opposition to them.
Upon the precise point now before the court, we have the case of The Executors of Van Rensselaer v. The Executors of Platner., decided by this court in 1806. (1 John. 276.) That was, as this is, an action of covenant for rent arrear, payable in wheat The. question was whether interest was recoverable on the arrears of such rent. “ Per Curiam. We are of opinion, that as a general rule, interest is not recoverable in such a case, and nothing appears, in this instance, to hinder the application of that rule.” But in Clark v. Barlow, (4 John. 183,) which was also an action of covenant for non-payment of rent, “the only question submitted to the court was, whether the *149plaintiff was entitled to recover interest on a rent, being a specific sum payable in money? The court said, “ we are of opinion, that in an action of covenant brought to recover a sum certain, due for rent, and payable in money, the plaintiff is entitled to recover the interest.” These cases, as it seems to me, were both determined on correct principles; the difference is between an unliquidated demand for wheat or anything else, and a certain sum payable in money. On the first, interest does not follow as a necessary legal consequence, as it does on the last.
Let us now turn to the case of Lush v. Druse, (4 Wend. 313,) to which allusion has already been made as an'exception to a series of authorities otherwise uniform and harmonious. That case was decided in 1830. It was an action of covenant on a durable lease, like the one in this case, and which reserved an annual rent of eighteen bushels and one-fourth of a bushel of good merchantable wheat, to be delivered in the city of Albany, on the first day of February, in each year. The plaintiff sought to recover for several years’ rent, alleged to be in arrear. On the trial the value of wheat for the several years in question was proved, and the plaintiff claimed interest on the amount. On this question no opinion was expressed by the judge at the circuit, but finally, a verdict was taken for the value of the wheat, deducting a certain payment, “subject to the opinion of this court; the interest to be added if the plaintiff was entitled to recover interest.” There were various other questions, but which need not be stated. According to what appears in the report of the case, the counsel for the plaintiff made but a single remark on the question of interest, which was that “ the defendant was in fault, and therefore chargeable with it.” For this he referred to, 5 Cowen, 144; id. 615. The counsel for the defendant does not appear to have said any thing on the point. Chief Justice Savage delivered the opinion of the court, and on this question he said: “ I can see no possible objection to the allowance of interest. The value of the wheat became due on the first of February, in each year, in consequence of the default of the defendant in not delivering *150the wheat according to contract; and interest is as much the right of the creditor after the principal becomes payable as the principal itself.”
■ If this is to be understood as the statement of a legal principle, it cannot, as I think, be maintained. It may be, where the sum is liquidated and fixed, that, after default in payment, interest is as much the right of the creditor as the principal itself, but it never was held that such was the rule where unliquidated damages remained unsatisfied. The cases all stand opposed to such a principle; and we should, as it seems to me, do great injustice to Chief Justice Savage, by understanding what he said as the annunciation of a legal principle. The verdict had been taken subject to the opinion of the court on a case containing the evidence given on the trial, and which, so far as relates to matters of fact, substituted the court for the jury. This practice, although condemned as confounding the powers of the court and jury, and as “ subversive of the fundamental principles of our jurisprudence,” (Hubbard v. Chenango Bank, 8 Cowen, 100,) was continued until a late revision of the rules when it was abolished, it being declared by rule that no verdict should thereafter “be taken subject to the opinion of the supreme court, except where the parties shall agree on the facts proved, or where such facts shall be found by the jury.” (Rule of 1845, No. 36. Banyer v. Ellice, 1 Hill, 24.) When the case of Lush v. Druse was decided, the old practice, however, was in vogue, and the verdict being subject to the opinion of the court on the evidence set out in the case, the court were required to decide upon it as the jury should have done, and as they might have allowed interest by way of damages for the breach of covenant, the court might do the same. What was said by Chief Justice Savage, I understand as expressive of what might, very properly, be held and done by a jury in such a case. They might allow interest as well as the value of the wheat, as only a just equivalent for the damages sustained by the breach of covenant; and as this would be proper for the jury to do, it was equally so for the court in the exercise of a similar power. *151No authority on this point was referred to, in deciding Lush v. Druse, and it may, as I think, reasonably be inferred from what appears in the opinion of the court, that none had been examined. Certainly, if adjudged cases op the point had been consulted, it could not have been said, as mattter of law, that interest, op unliquidated damages, was as much due as the damages themselves. The habit of Chief Justice Savage was to fortify his opinions qn points of law by copious references to adjudged cases; and I venture to say he would never have decided that interest was a necessary legal consequence in any case like the one before him, without a full examination of the authorities on the subject. Looking then at the shape in which the question of interest was presented and disposed of in that case, I understand what was said by the court as amounting to this, that in such cases the jury have a discretion to allow interest by way of damages, and as that was a point then to be determined by the court instead of the jury, it was on|y just and equitable to allow interest on the value of the wheat as found by the jury. Understood in this sense the case of Lush v. Druse is not an authority for holding that the law, in any case, imperar tively requires interest to be given on unliquidated damages; nor is it, as it otherwise would be, in direct conflict with the case of the Executors of Van Rensselaer v. Plainer, already referred to, and the current of authority on the subject.
On the argument of Lush v. Druse, the case of Spencer v. Tilden was referred to by the counsel for the plaintiff, as an authority for the allowance of interest, and our attention has been called to the same case as in point on the present occasion. Spencer y. Tilden was brought on a written agreement to pay and deliyer three hundred and sixty dollars, or twelve good cows and twelve calves, at a time and place specified in the agreement. Two defences were set up—first usury, and secondly performance. On the trial a verdict was taken for the value of the cows and calyes, with interest, in all two hundred and eight dollars, no questiop as to interest bejng made at any stage of the .cause. The .court held the three hundred and sixty dollars ,to be in the nature of a penalty, and there *152being no usury in the case, the plaintiff had judgment on the verdict. A legal rule for the allowance of interest cannot well be deduced from a case in which no such question was made, and this case of Spencer v. Tilden, as it seems to me, is not to be regarded as any authority whatever, on such a point.
The opinion of Spencér, senator, in the case of the Renss. Glass Factory v. Reid, (5 Cowen, 615,) was also referred to by counsel in the case of Lush v. Druse. The question in the first of these cases was, as to' a right to interest on divers sums of money advanced by an agent, and not as to interest on unliquidated damages. That case contains a very full, and, as I think, a very just, exposition of the law of interest on loans and advances of money. But there was no claim in that case for interest on unliquidated damages, nor was any thing said in deciding it which gives countenance to the idea that the law adjudges interest to be payable on such damages. The opinion of Senator Spencer was probably referred to for the position of the counsel, that the defendant, being in fault, was chargeable with interest. At the page cited, the opinion, which is throughout lucid and cogent, adverts to several adjudged cases, and then follows this remark : “ All these cases allow interest where there has been fraud, injustice or delinquency.” But the cases thus referred to were for certain sums of money, and not one of them, like this, for unliquidated damages ; the remark therefore is quite inapplicable here. Every one who omits to perform his engagements, is in fault or delinquent ; as.much so where the damages are uncertain, as where they are liquidated. To say that all who are delinquent must pay interest, is saying that it must be paid in' every case where an action on contract is sustained, a point never yet held in any case.
I have assumed, throughout, that the jury in ascertaining what damages had arisen from the breach of covenant complained of in this case, might compute and allow interest on the value of the wheat, hens and service, for which the defendant was delinquent. There are many cases arising on contract in which this may be done, and the present, in my opin*153ion, is of that description. Not that the law requires such an allowance to be made, as was held at the circuit, in this case, but the jury may or may not allow it, as shall seem to them just and equitable under the circumstances of the particular case. (Anonymous, 1 John. R. 315 ; Renss. Glass Fac. v. Reid, 5 Cowen, 587, opinion of Spencer, sen. ; Dox v. Dey, 3 Wend. 356; McIlvaine v. Wilkins, 12 N Hamp. 474; Eddowes v. Hopkins, Doug. 361; Arnott v. Redfern, 3 Bing. 353; Page v. Newman, 9 B. & C. 378 ; Letcher v. Woodson, 1 Brock. 212; Selleck v. French, 1 Conn. 32; Hovey v. Newton, 11 Pick. 421.) But this point is not material here. It was not made at the trial or on the argument, nor has it been examined with a view to a final opinion. I have merely stated my impression, for no decision on the point can be made as this case is now presented. If my present views of the question should turn out to be erroneous, it would, in no degree, affect the particular point to be decided on the present occasion. ■ But if the case of Lush v. Druse could be taken as in point, to maintain the ruling of the judge on the trial of this cause, I should be unable to follow it as a controlling authority. Understood as announcing a legal principle, that case is in direct conflict with the judgment of this court in the Executors of Van Rensselaer v. Plainer, to which reference has been made, and which, no doubt, would have been regarded as controlling on the legal proposition, if the case had been brought to the notice of the court. It was not, however, referred to on the argument of Lush v. Druse, nor, indeed, was any case on the question of interest cited by the counsel for the defendant on that occasion. Neither did the court refer to that or any other authority on the subject; but the case was, apparently, decided without any examination of the question as one of pure law. These considerations would induce me to disregard the case as authority, if I understood it as decided on a question of law. But understanding that case as I do, it is not in conflict with any other, and its authority is in no degree drawn in question.
I think there should be a new trial in this case.
New trial denied.