Copyright
J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) online

. (page 130 of 144)
Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) → online text (page 130 of 144)
Font size
QR-code for this ebook


agent, a parcel of huul belonging to
the estate uiuler iiis earc as sudi,
and afterwards made penniincMl im-
provements and paid taxes. In a
suit by the heirs tiiis sale was set
aside as fraudulent, and allowance
was made to the defendants, who
were the li(>irs of the fraudulent
trustee, for the permanent improve-
ments and taxes, after deducting
rents and profits: this, together
with the amount paid at the fraudu-
lent sale, was required to Im> paid
back, but without interest. It was
observed that to allow interest in
such a case would be allowing tliem
to reap advantage from the wrongful
and inequitable act of their an-
cestor.

69 Cusick V. Langan, ir)7 111. App.
472; Hazard v. Durant, 14 R. 1.
25; Burdick v. Garrick, L. R. o
Ch. 233; Attorney-General v. Al-
ford, 4 De G., Macn. & G. (•)7r.;
Penny v. Avison, 3 Jurist (X. S. ) ,
62; Cruce v. Cruce, 81 ?klo. (i7(i.
But see Dissenger's Case, 39 X. .1.
Eq. 227; Eppinger v. Canepa, 20
ria. 262; Latham v. Wilcox, 9!) X.
C. 367.

Regardless of wliether a trustee
made profits in his business by the
use of the trust funds, if he has
used the money he is chargeable
witli compound interest (Speiser v.
^Merchants' Exeh. Bank, 110 Wis.
r)07, 524), from the date of tlieir ap-
j)ropriation until tliat of final judg-
ment, IKitwii h - l ;i Ihlill'.' Ilie L'i:|llli"Lr



1128



SUTHERLAND ON DAMAGES.



[§ 353



profits he has made by his misconduct are iu excess thereof.'"
A trustee invested funds in securities which were repudiated
by the cestui que trust and condemned by the court. He was
held liable for the legal rate of interest though the securities
bore a higher rate.'^^ An agent who invests as his own the
funds of his principal will be charged with interest at the
legal rate in the jurisdiction where they were invested.'^
Where an agent contracted to invest money at ten per cent and
invested but part of it, using the balance, he was charged with
that rate for the amount invested and the legal rate for the
balance.'^ The liability of an agent for interest is dependent



of a new trial. Faulkner v. Hendy,
103 Cal. 15.

In England the profits made must
be paid to the trust unless it is
impossible to prove what they were,
in which case the trustee will be
liable for trade interest. Davis v.
Davis, [1902] 2 Ch. 314.

A trustee should not be charged
with compound interest unless it is
necessary to do so to deprive him of
all profit and to give the cestui que
trust that which he is entitled to.
Silver King Consol. Min. Co. v.
Silver King Coalition Min. Co., 122
C. C. A. 402, 204 Fed. 166.

70McIntire v. Mclntire, 192 U. S.
116, 48 L. ed. 371; Clapp v. Vatcher,
9 Cal. App. 462; Sidway v. Ameri-
can M. Co., 119 111. App. 502 (money
not reported) ; Estate of Cousins,
111 Cal. 441; In re Assignment of
Murdoch, 129 Mo. 488; Sanguinett
V. Webster, 1 53 Mo. 343 ; Re Hodges'
Est., 06 Vt. 70, 44 Am. St. 820;
Speiser v. Merchants' Excli. Bank,
110 Wis. 507; Parker v. Nickerson,
137 Mass. 487; Cruce v. Cruce, 81
Mo. 676; Rochester v. Levering, 104
Ind. 526, 54 Am. Rep. 334; White
V. Ditson, 140 Mass. 351, 54 Am.
Rep. 473. See Munson v. Plmiiiner,
59 Iowa 136.



One of three executors with whom
tru.st funds are deposited is liable
only for tlie rate of interest paid by
it on ordinary deposits. Moore's
Est., .211 Pa. 348.

For mere neglect to deposit funds
interest will be charged at the rate
tliey would have earned if deposited.
In re Smitli, 97 App. Div. (N. Y.)
157.

A person who possesses himself of
the property of a bankrupt is liable
for the legal rate of interest on its
value at least from the time he dis-
poses of it; a demand upon him for
it is not necessary after he has
knowledge that the trustee in bank-
ruptcy regards his possession as
wrongful. Ommen v. Talcott, 175
Fed. 261.

71 Coghill V. Boyd, 79 Va. 1.

72 Bischoffsheim v. Baltzer, 21
Fed. 531.

73 Rogers v. Priest, 74 Wis. 538.
A decedent to whom money had

been intrusted for investment in-
formed its owner that it was earn-
ing five per cent. It was not shown
that it earned more. The estate was
liable for that rate until action was
begun, and thereafter for the legal
rate. De Crano v. Moore, 50 App.
Div. (N. Y.) 361.



§ 353 j INTEREST. 1129

upon liis detention of the fnnds of his |»i'iiici|iiil without the
latter's consent.'*

The law does not look with favor upon guardians who abuse
their trust or neglect their duties. They are subject to the
general rules of liability which follow the trust relationship,
reinforced by the desire of the courts to protect the interests
of their wards. A guardian de facia may be liable for com-
pound interest.'* The legal rate of interest will be charged
against a guardian who improvidently invests the funds of a
ward unless it is shown he could have obtained a higher rate
on proper security.'^ While a guardian is usually not liable
for both the profits made on an investment of his ward's funds
and interest yet if the ward elect to recover the profits and
there is a refusal to account for them the guardian is liable for
interest on both principal and profits from the date of the
ward's election.'' Where a guardian's misconduct subjected
him to liability for compound interest, he was charged with it
at the highest legal rate up to the time the ward became of age
and thereafter, because at that time the debt assumed the
nature of an ordinary one, at the lowest legal rate.'® If the
loss resulting from the trustee's neglect is less than the income
of the fund at the statute rate of interest he may be relieved
on making it good.'^ The pendency of litigation against the

74 Young V. Kimher, 44 Colo. 448, Where executors allowed money
28 L.R.A.(N.S.) 626. to remain on deposit without inter-
ns Watts V. Watts, 104 Va. 269. est for five years they were ciiarged

76 Parker v. Wilson, 08 Ark. 553. with interest at four per cent, for

77 Meyers v. Martinez, 172 Ala. the first year, and at six per cent.
641. subsequently, after they were hound

The highest legal rate may be col- to pay the juoney to the legatees.

Iccted if the funds have been used They were not relieved from tliis

by a guardian. Fisher v. Brown, liability because they did not know

135 N. C. 198. to whom to pay. Almy v. Probate

78 Armstrong v. Walkup, 12 Court, 18 R. I. 612.

Gratt. 608; Tanner v. Skinner, 11 79 Livermore v. Wortman, 25

Bush 120; Clay v. Clay, 3 Mete. Hun, 241.

(Ky.) 548; State v. Richardson, 29 If money is deposited subject to

Mo. App. 595; Stewart v. Sims, 112 check, instead of upon certificate, he

Tenn. 296 (compound interest up to will be charged with interest at

time of removal; thereafter the bank rates. In re Brewster's Est.,

statutory rate). 113 Mich. 561.



1130



SlITUKKLAND ON DAMAGES.



[§ 353



estate may affect the trustee's liability for interest ou funds iu
his possession/"

Trustees are not ordinarily chargeable with interest for fail-
ing to invest funds until the lapse of a reasonable time after
they have come to their hands. ISTo absolute rule can be an-
nounced as to what constitutes such time because the condi-
tions vary, six months has been regarded as sufficient under
ordinary circumstances.*^ But there will be no exemption
from the payment of interest during that period where the
trust funds are mingled with those of the trustee.*^ There is
a tendency to lessen the time for making investments. The
six months' rule grew out of the circumstances of an earlier
time, and its applicability to existing conditions has been
doubted.*^ Executors who act honu fide, under an irregular
judgment, in retaining a larger sum than was necessary will
not be liable for interest thereon after the reversal of such judg-



A trustee who withdraws funds
from a bank paying interest on bal-
ances and deposits them in his own
bank must pay such a rate of in-
terest as he coukl reasonably liave
secured from the bank from which
they were taken or from other
reputable banks in the same region.
Diclv's Est., 183 Pa. 647.

80 Howe V. Winn, 150 Ky. 667.

81 In re Thomas's Est., 26 Colo.
110; Griffith's Est., 147 Pa. 274;
Crosby v. :\Ierriam, 31 Minn. 342;

-Dunscomb v. Dunscomb, 1 Johns. Ch.
508, 7 Am. Dec. 504; Thurston, Mat-
ter of, 57 Wis. 104; Corcoran v.
Renehan, 24 App. D. C. 411; Mcln-
tire V. Mower, 204 Mass. 233. See
Price's Est., 18 Pa. Dist. 442.

The time allowed executors to set-
tle estates varies according to the
circumstances. Interest is not
usually charged during the period
necessarj^ therefor : it has been
charged thereafter and imtil the fil-
ing of the account. Reed's Est., 22
Pa. Super. 635.

Guardians are not liable for inter-



est during the year following their
appointment unless it is earned.
Griffin v. Collins, 125 Ga. 159.

82 Gay V. Whidden, 64 Fla. 295;
Noble's Est., 178 Pa. 460. Compare
In re Sexton, 61 N. Y. Misc. 569,
and cases cited.

83 About one year has been al-
lowed, and allowance has also been
made because all the money cannot
be invested all the time. Becker's
Est., 21 Pa. Dist. 97.

"The time," it was said in Wit-
mer's App., 87 Pa. 120, "should be
such as the circumstances of each
particular case would show to be
reasonable," and was fixed at two
months. "But in view of the facil-
ity with which trust funds may now
be deposited at interest until per-
manent investment can be had, it is
at least questionable whether rests
in tlie ordinary sense should Ije al-
lowed at all." Xoble's Est., supra.

Trustees have been held lial)le for
interest for the whole six months
next after they received funds which
they failed to invest, no excuse being



§ .353]



lATEKKST.



ii;;i



mciit.®^ A trust for support and niaintenanco, if the trust does
not direct that the expense thereof shall be paid out of the in-
come, necessarily implies that a sutHcient amount of cash is to
be kept on hand to supply ilic c-iiriH'iit wants and expenses of the
cestui que lru.sl; and unless the trustee kee-ps an unnecessarily
large balance on hand he is not chargeable with interest there-



on.



85



If funds are converted,*® or are not applied and ])aid over
according to a trustee's duty,*'' he is chargeable with interest
from the conversion or time when it was his duty to jjay tlie
money.** A failure to account is ground for charging interest
from the time the account was acted upon because the extent
of the executor's liability was then iixed.*^ An unjustifiable ap-
peal from an order of distribution may afford cause for c-hai-o -
ing an executor with interest from the time the order was
made.^° The executor of a deceased trustee who has become
liable for compound interest is not bound to keep unearmarked



offered. Adamson v. Reid, 6 Vict. L.
R. (Eq.) 1G4.

In South Carolina the general
rule is that an administrator is
chargeable with interest from the
beginning of the year in which he
was appointed. Koon v. Munro, 11
S. C. 139. It is also a general rule
tliat all funds received during the
current year are to be regarded as
unproductive until the end thereof,
and all expenditures made during
the course of the year should be re-
garded as made before tlie balance
struck that is to bear interest.
Nicholson v. Wliitlock, 57 S. C. 36;
Anderson v. Silcox, 82 S. C. 109.

Under the Illinois statute an exec-
utor who fails to make annual
reports and thus bring to the notice
of the court the fact tliat legacies
are unpaid is liable for ten per cent,
interest on the legacies after the ex-
piration of two and one-half years.
Cox V. Cox, 53 111. App. 84: Boyd
V. Swallows, 59 id. 635.

An administrator who is prevent-
ed bv litiiiation from distril)uting a



fund is not liable for interest be-
cause lie dejiosits it to his individual
credit if his account was much
larger than the fund and lie did not
profit by tlie deposit. Kerr's Est.,
35 Vd. Super. 350.

84 Boys' Home v. Lewis, 3 Out. L.
R. 208.

85 Griffith's Est., 147 Pa. 274.

A trustee wiiose sole duty it is
to liold money until it is demanded
is not liable for interest. Strauss
V. Gilbert, 135 111. App. 130.

86McI\im V. Blake, 139 Ma.ss. 593.

87Judd V. Dike, 30 Minn. 380;
Yeatman's App., 102 Pa. 297; Mc-
Donald V. People, 222 111. 325;
Trotter's Est., 15 Pa. Dist. 352.

88Shickler's E.st., 13 Phila. 5(14;
Ramsey's App., 4 Watts 71 ; Tomlin-
.son's App., 90 Pa. 224; Miller v.
Lux, 100 Cal. 609, 039; Wyckoff v.
O'Xeil, 71 N. J. Eq. 729.

89 Fuller v. Diipont, 1S3 Mass.
590.

90 1,1 re Settb'inent (if Peters, 128
Mo. .App. •!(!(!.



1132



SUTHERLAND ON DAMAGES.



[§ 353



funds which the trustee had mingled with his own invested,
and inasmuch as the demand for the trust funds could not be
satisfied until action by the probate court the estate is not
liable for interest after the trustee's death.^^ In an accounting
by a trustee there is no inflexible mode of computing the in-
terest on annual balances. If it appears that the disbursements
in any given year exceed the year's receipts the whole of the
balance in the trustee's hands at the beginning of the year does
not bear interest for twelve months,, but the interest-bearing
balance must be ascertained by adding to the annual balance
found to be in his hands at the beginning of the year the re-
ceipts for the next year and deducting from the sum thus as-
certained the whole amount of the payments made during such
year ; the residue only will constitute the interest-bearing fund
for that year.^*^

If the conduct of the cestui que trust prevents the use of
funds according to the judgment of the trustee his liability
will be limited to the rate of interest they bore.^^ Public
officers who fail to pay over money in their hands, according to
duty will be charged with interest from the time they should
have paid it ; ^* they are also liable for interest on the value of
property lost by neglect,^^ and on claims allowed them in excess
of the fees by law from the time of their allowance.^^ An



91 Bemmerlj^ v. Woodward, 124
Cal. 568.

92 Tucker v. Richards, 58 S. C. 22,
20.

93 Ford V. Wilson (Del. Cli.), 85
Atl. 1073.

94 Zuelly V. Casper, 37 Ind. App.
186; Havre De Grace v. Fahey, 108
Md. 533; Adams v. Savinders, 93
Miss. 520; Gartley v. People, 28
Colo. 227; Sheridan v. Van Winkle,
43 N. J. L. 125 ; Cassady v. Trustees
of Schools, 105 111. 560; Stern v.
People, 102 id. 540; Common-
wealth V. Porter, 21 Pa. 385;
Magner v. Knowles, 67 111. 325 ; Peo-
ple V. Gasherie, 9 Johns. 71, 6 Am.
Dec. 263; Slingerland v. Swart, 13



Johns. 255; Lawrence v. Murray, 3
Paige 400; Board of Justices v.
Fennimore, 1 N. J. L. 242; Hudson
V. Tenney, 6 N. H. 456; Crane v.
Dygert, 4 Wend. 675; Board of
Supervisors v. Clark, 25 Hun 282.

An exception has been made where
the funds were not wilfully with-
lield, the object being to test the
right of the officer thereto. People'
V. Maddox, 176 111. App. 480.

In some cases this has been taken
to mean from the time of demand by
the successor. State v. Keadle, 63
W. Va. 645 ; State v. McDermitt, 72
W. Va. 291.

95 Hearn v. Ayres, 77 Ark. 497.

96 Tucker v. State, 163 Ind. 403.



§ 353] INTEREST. 1133

officer is not liable for interest on money held in his official
capacity after the expiration of his term if ho was j)rcpareil
to pay it on demand.^' A prulhonotary who legally receives
fees due other officers is not liable to them for interest nntil
after demand.^* If a public officer whose duty it is to collect
and receive money is bound for it at all hazards unless the law
requires him to place it in a depository as the money of tlio
public, lie is not liable for interest on it although he nuiy have
mingled it with his own funds and received interest.^' But
where the legal ownership of moneys coming into the hands
of a public treasurer, is in the state the interest jjaid for the
deposit thereof by him may be recovered from the treasurer or
his sureties.^ The danuiges resulting to a creditor fi-oiu tlie
escape of his debtor, against whom he has recovered judgineut,
includes the amount of the judgment with interest, and the
sheriff is liable for the latter.^ In the case of a United States
disbursing officer, from whom it is claimed funds were
abstracted without his knowledge, he being innocent in reference
thereto, interest cannot be recovered in a suit against him
to recover the missing funds, no demand upon him being
shown.^ A collector of internal revenue who unlawfully exacts
taxes, which are paid under protest, must respond for interest
thereon.* The nonperformance of a duty by an officer which
prevents the receipt of money by the person entitled to it is
ground for charging the officer with interest on it.^ An officer

97 Strauss v. Gilbert, 232 111. 441 Schott, id. 522; State McFetridgo,
(redemption money). 84 Wis. 473, 505, 20 L.R.A. 223;

98 Sliafer v. Mcllhaney, 1 Pa. Dist. Board of Supervisors v. Verkerke,
765, 154 Pa. 58. 128 Mich. 202; Eshelby v. Cincin-

99 State V. Walsen, 17 Colo. 170, nati Board of Education, GG Ohio
15 L.R.A. 456; Board of Education St. 71. See note to § 479.

V. Cooper, 98 Minn. 535; Common- 2 Dunford v. Weaver, 84 N. Y.

wealth V. Godshaw, 92 Ky. 435; 445 ggg § 439.

Shelton V. State, 53 Ind. 331; 3 United States v. Den vir, lOG U.

Bocard v. State, 79 Ind. 270; Snapp ^ ggg^ ^^ ^ ^^ 264; United States

V. Commonwealth, 82 Ky. 173. See -r, ,, n^ n 1 ^oo

' '' v. Butler, 114 Ped. 582.

note to § 479.

INew Haven v. Fresenius, 75 ' ^reat v. Farmers' L. & T. Co.,



185 Fed. 760
5 Hupe v.
Ohio N. P. (N. S.) 513; State v. 43 L.P.A. (N.S.) 565



Conn. 145; Furnas County v. Evans,

90 Neb. 37; State v. McKinnon, 9 5 Hupe v. Sommer, 88 Kan. 5G1,



1134



SUTHERLAND ON DAMAGES.



[§ 354



who holds funds as a statutory trustee must account for in-
terest received on them.^

§ 354. On money obtained by extortion or fraud, or wrong-
fully withheld or disposed of. Money obtained wrongfully or
by extortion or fraud is recoverable with interest from the
time it was obtained ; ' and if money received to another's use
is wrongfully withheld or disposed of it carries interest,' and
so does money received by a party for property tortiously taken
or converted by him.^ On the setting aside of a sale for fraud
interest may be allowed from the time of rescission.^" Where



6 McKane v. O'Brien, 40 New
Briins. 392.

7 United States Home Co. v.
O'Connor, 48 Colo. .354; Siltz v.
Springer, 236 111. 276; Meyer v.
Johnson, 122 111. App. 87; Robbins
V. Selby, 144 Iowa, 407; Whitcomb
V. Collier, ]33 Iowa 303; Steele v.
Kellogg, 163 Mich. 132; Corse v.
Minnesota G. Co., 94 Minn. 331;
Goldberg v. West End H. Co., 78
N. J. L. 70; Sykes v. Life Ins. Co.,
148 N. C. 13; Webster v. Douglas
County, 102 Wis. 181, 196, 72 Am.
St. 870; Bur rough v. Abel, 105 Fed.
366 (in the absence of laches;
if that has existed the recovery may
not extend beyond the time suit was
brought) ; Woldert v. Nedderhut P.
P. Co., 18 Tex. Civ. App. 602; Com-
monwealth V. Press Co., 156 Pa.
516; Arthur v. Wheeler & W. Mfg.
Co., 12 Mo. App. 335 ; Atlantic Nat.
Bank v. Harris, 118 Mass. 147;
Conyer v. Magrath, 4 McCord, 218;
Win.slow V. Hathaway, 1 Pick. 211 ;
Trustees, etc. v. Lawrence, 11 Paige,
80; Boston & S. G. Co. v. Boston,
4 Mete. (Mass.) 181; Greenly v
Hopkins, 10 Wend. 96; Adkins v
Ware, 35 Tex. 577; Wood v. Rob
bins, 11 Mass. 504, 6 Am. Dec. 182
Clayton v. O'Connor, 35 Ga. 193;



Kornegay v. White, 10 Ala. 255;
Goddard v. Bulow, 1 Nott & Mc-
Cord 45, 9 Am. Dec. 663; Gregga
V. Greggs, 56 N. Y. 504; Mason v.
Waite, 17 Mass. 560; Shaw v. Gil-
bert, 111 Wis. 165, 195; John V.
Farwell Co. v. Wolf, 96 Wis. 10,
20, 37 L.R.A. 138.

In Chew v. Bank, 14 Md. 299, a
transfer of stock under a bill of sale
and power of attorney executed by
a lunatic was avoided, and it was
held that the defendant should pay
simple interest on the dividends ac-
crued on the stock since the transfer,
from the time the defendant knew
of the lunacy. See Lincoln v.
Claflin, 7 Wall. 132, 19 L. ed. 106.

8 Rapelie v. Emory, 1 Dall. 349,
1 L. ed. 170; Shipman v. Miller, 2
Root, 405; Black v. Goodman, 1
Bailey, 201 ; Simpson v. Feltz, 1
McCord's Eq. 213, 16 Am. Dee. 602;
Commonwealth v. Crevor, 3 Bin.
121; Crosby L. Co. v. Smith, 2 C. C.

A. 97, 51 Fed. 63; American T. &

B. Co. V. Boone, 102 Ga. 202, 66
Am. St. 167, 40 L.R.A. 250.

SMcBeth V. Craddock, 28 Mo.
App. 380; Chauncey v. Yeaton, 1 N.
H. 151.

10 Felt V. Bell, 205 111. 213.



§ 355]



INTEREST.



1135



the damages are iiiilitjuidatecl, interest is williin the diseretiun
of the jury.^^

§ 355. Interest in actions for torts. In actions for torts, in
order to give the injured party full indemnity, interest is al-
lowed in trover, or where any analogous remedy is sought,
on the value of the property from the date of conversion ; ^*
in trespass, also, on the value from the date of the taking.^^ [u
case of injury to real [)roperty interest will be computed from
the time of such injury, ^^ and if the wrong was done in good
faith it will be allowed only from the time the action was be-



11 Xicliols V. Coleman, 9G App.
Div. (N. Y.) 353.

12 Brown v. First Nat. Bank, 49
Colo. 393; Davis v. Gott, 130 Ivy.
486; East Tennessee L. Co. v. Lee-
son, 183 Mass. 37; Durham v. Com-
mercial Nat. Bank, 45 Ore. 385;
Arpin v. Burch, 68 Wis. 019; Bone-
steel V. Orvis, 22 Wis. 523 ; Schmidt
V. Nunan, 63 Cal. 371; Hudson v.
Wilkinson, 61 Tex. 610; Grimes
V. Watkins, 59 id. 140 ; Watson v.
Harmon, 85 Mo. 443; Kamerick v.
Castleman, 29 Mo. App. 658; Hyde
V. Stone, 7 Wend. 354, 22 Am. Dec.
582; McConnick v. Pennsylvania
Cent. R. Co., 49 N. Y. 303 ; Dows v.
National Exch. Bank, 91 U. S. 618,
23 L. ed. 214; Taylor v. Knox, 1
Dana 400; Bissell v. Hopkins, 4
Cow. 53 ; Richmond v. Bronson, 5
Denio 55 ; Garrard v. Dawson, 49
Ga. 434; Wehl v. Butler, 43 How.
Pr. 5; Schwerin v. McKie, 51 N.
Y. 180, 10 Am. Rep. 581; Beals v.
Guernsey, 8 Johns. 446, 5 Am. Dec.
,348; Kennedy v. Whitwell, 4 Pick.
466; Johnson v. Sumner, 1 Mete.
(Mass.) 172; Hogg v. Zanesville C.
& Mfg. Co., 5 Ohio 410; Hepburn
V. Sewell, 5 Harr. & J. 212, 9 Am.
Dec. 512; Kennedy v. Strong, 14
Johns. 128; Ekins v. East India Co.,
1 P. Wms. 395; Thomas v. Stcrn-
heimer, 29 Md. 268; Fowler v.



Davenport, 21 Te.x. 626; Pease v.
Smith, 5 Lans. 519; Vaughan v.
Howe, 20 Wis. 497 ; Ciiauncey v.
Yeaton, 1 N. H. 151; Varco v. Chi-
cago, etc. R. Co., 30 Minn. 18;
Swanson v. Andrus, 83 Minn. 505.
See Pierce v. Rowe, 1 N. H. 179;
Hamer v. Hathaway, 33 Cal. 117;
Northern T. Co. v. Sellick, 52 111.
24!) ; Tarpley v. Wilson, 33 Miss.
467; Isabella G. M. Co. v. Glenn,
37 Colo. 165, § 1109.

If there has been a recovery of
profits lost by reason of the wrong
done, the property interest cannot
be allowed. McGuire v. Galligan,
53 Mich. 453.

In Montana interest cannot be
recovered in an action for conversion
for any period before judgment.
Randall v. (ireenhood, 3 Mont. 506;
Palmer v. ^Murray, 8 id. 174, 8 Mont.
312.

13 Callen v. Collins, (Tex. Civ.
App.) 154 S. W. 673; Baker v.
Railroad Co., 56 Vt. 302; Piatt v.
Continental Ins. Co., 62 Vt. 166;
Blackie v. Cooncy, 8 Nev. 41 ;
Shepherd v. ]\IcQuilkin, 2 W. Va.
90; Beals v. Guernsey, 8 Johns. 446,
5 Am. Dec. 348; Bradley v. Geiscl-
man, 22 111. 494. See § 1006, also
§ 1026.

14 Union W. P. Co. v. Lcwiston,
101 Me. 564.



1136



SUTHERLAND ON DAMAGES.



[§ 355



guii.^^ Where a statute fixes the damages for the wrongful
cutting of timber at the highest market vahie thereof iu what-
soever place, shape or condition, manufactured or unmanufac-
tured, the same may have been at any time before the trial
while in possession of the defendant, interest is not allowed
on the value so found before judgment. By pursuing his stat-
utory right the plaintiff waives that which he had independ-
ently of it.^® In replevin interest is allowed to the plaintiff on
the value of the property during the period of wrongful de-
tention, and this is the ordinary measure of damages where
no special damage is shown; ^"^ but in the absence of any stat-
ute allowing damages to the defendant for wrongful detention
by means of the suit interest is not recoverable by him in that
action.^^ Where property is destroyed, or its value diminished
by negligence interest is, in some jurisdictions, likewise a part
of the compensation to which the injured party is entitled.^'



15 Gulf, etc. Pv. Co. V. Moseley, 6
rnd. T. 369

16 Smith V. Morgan, 73 Wis. 375.
nSlieffield V. Hanna, 136 Iowa



Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 1) → online text (page 130 of 144)