Their argument that a decision requiring an accounting would interfere with the statutory powers of the Commissioner of Banks to regulate payment of interest is irrelevant. The brief of the Savings Banks Association of Massachusetts, submitted as amicus curiae, relies upon Goldman v. Worcester, 236 Mass. 319, to support the contention that the defendant is under no obligation to return interest on the tax payments to the plaintiffs. Such reliance is misplaced.
Similarly count 4 must fail. It is based solely upon a violation of § 148 for which the Legislature has provided only criminal penalties. While at common law interest has been allowed as damages for the wrongful detention of money, Wood v. Robbins, 11 Mass. 504, 506; Goldman v. Worcester, 236 Mass. 319, 321; Ratner v. Hill, 270 Mass. 249, 253, the plaintiff's claim that there has been a wrongful withholding can be established only by proof that the statute has been violated. Since there is no allegation that an employment contract provided for weekly payments, there is no other basis upon which such payments could be required. For the reasons given and the authorities cited in the first part of this opinion, the demurrer to count 4 was properly sustained.
The usual rule, applicable to cases at law and in equity, is that when money is not paid when due the plaintiff is entitled to interest, by way of damages, from the time when it should have been paid. Williams v. American Bank, 4 Met. 317, 320-322. Donahue v. Partridge, 160 Mass. 336, 339. Goldman v. Worcester, 236 Mass. 319, 320. Ratner v. Hill, 270 Mass. 249, 253. Borst v. Young, 302 Mass. 124, 126. We see no reason for departing from that rule here. Since Winchell's tender called for the payment of a liquidated sum, interest should run from the date of the tender.
There was no evidence of any agreement that the $3,000 for the goods included in the assignment and restored to Mrs. Simpson or the items of charges for goods sold to Mrs. Simpson or her husband after the conveyance of the land should bear interest, or as to the due dates of these items, or as to any demands for their payment. See Gay v. Rooke, 151 Mass. 115, 116-117; Bacon v. Bacon, 266 Mass. 462, 474; Sayles v. Commissioner of Corporations Taxation, 286 Mass. 102, 105; Childs v. Krey, 199 Mass. 352, 358; Goldman v. Worcester, 236 Mass. 319; Bank of Brighton v. Smith, 12 Allen, 243, 251-252; McGrimley v. Hill, 232 Mass. 462; Cochrane v. Forbes, 267 Mass. 417; Ratner v. Hill, 270 Mass. 249, 253; Graustein v. H.P. Hood Sons, Inc. 293 Mass. 207, 222. Nor do we find any evidence that it was a part of the oral trust agreement between Mrs. Simpson and the defendant that interest should be paid, except a self-serving statement by the defendant in one of its letters long after the agreement was made.
The defendant D'Amore Construction Company is to be ordered to pay to the plaintiff the sum of $1,050 (which will constitute a partial satisfaction of the indebtedness of said Browne aforesaid), but no interest prior to the final decree is to be allowed on said sum, for there has been no unlawful detention of the money. Goldman v. Worcester, 236 Mass. 319. Ratner v. Hill, 270 Mass. 249. Central Trust Co. v. National Biscuit Co. 273 Mass. 319. The defendant D'Amore Construction Co. is to be allowed costs against the plaintiff, since it prevailed on the only disputed issue.
Interest is allowed either as damages for the wrongful retention of money or personal property, or in accord with a contract for its payment. Wood v. Robbins, 11 Mass. 504. Dodge v. Perkins, 9 Pick. 368. Foote v. Blanchard, 6 Allen, 221. Goldman v. Worcester, 236 Mass. 319. In this Commonwealth, from a very early date, a moderate charge for the use of money has been recognized as lawful.
It was said by Chief Justice Shaw, in Williams v. American Bank, 4 Met. 317, 320, 321, "Interest is allowed, not only on strict legal grounds, where there is a contract for the payment of interest, or by way of legal damages where there is a tortious detention of a debt, but upon considerations of equity and natural justice, when a party is entitled to the payment of money, which, owing to various causes, he cannot obtain." See also Loring v. Wise, 226 Mass. 231, 234; Goldman v. Worcester, 236 Mass. 319; Ellvis v. Sullivan, 241 Mass. 60, 64. The check sent by the United States government, dated May 1, 1926, included both principal and interest; it bears upon its face the words "Refunding Taxes Illegally Collected," and apparently was the final payment received by the defendant.
In equity interest may be compounded and in the discretion of the court may be allowed where it is necessary for the purpose of affording a just and equitable accounting, particularly where the person charged with its payment is seeking the aid of the court. Barrell v. Joy, 16 Mass. 221, 227. Arnold v. Maxwell, 230 Mass. 441. Goldman v. Worcester, 236 Mass. 319. See Williams v. American Bank, 4 Met. 317, 319.
This constituted a wrongful withholding of the money from the date of filing the bill, and it is chargeable with interest at the statutory rate from said time. Goldman v. Worcester, 236 Mass. 319. Somewhat similar considerations govern the liability of the defendant Doherty for the amount received by him from the national bank. It was there deposited in the name of John F. Sullivan, Trustee, who held it in trust to secure the performance of the agreement; and the amounts so deposited were to be drawn out only with the sanction of James Dailey. The net proceeds were to be applied on the mortgages.
4. It is apparent from the record that the post-trial stipulation entered into by the parties was intended only to correct a mathematical error. It did not foreclose Hobbs Brook's right to seek the interest it is entitled to by law. Although the judge did not expressly order the payment of interest, such interest is allowed either under a theory that North River wrongfully detained the substitute premium payment or that it withheld money which rightfully belonged to Hobbs Brook. Goldman v. Worcester, 236 Mass. 319, 321 (1920). Vaughan v. Lemoine, 330 Mass. 83, 87 (1953).