Palmer v. Murray , 8 Mont. 312 ( 1889 )

Liddell, J.

The plaintiff complains that there has been error in the opinion of the' court; first, in refusing to allow interest as demanded, and allowed by the jury from the day of the illegal conversion of the property; second, that the court refused to allow the interest accruing between the date of conversion and the verdict to be capitalized, and thus included in the judgment. She also complains that the court has erroneously imposed upon her the costs of appeal. The complaint alleges that the defendant wrongfully carried away and converted to his own use certain personal property of the plaintiff, to her damage in the sum of four thousand five hundred dollars, for which she prays judgment with interest from the date of conversion. It is true the complaint in another count alleges that sum to be the value of the property described, but the demand is for damages with interest thereon; and whether it be a demand in trover or replevin, it still retains the character of a suit sounding in damages, and is most assuredly for an unascertained and therefore unliquidated demand. We cheerfully concede that the general rule as to the measure of damages in actions of trover is the value of the converted property at the time and place of its conversion, and interest thereon as a matter of law. Sutherland in his work on Damages, volume 3, page 488, announces this to be the rule in the American cases. What he means by interest as a matter of laio is not very plain, unless it is that interest is allowed or refused on the amount of damages after it is ascertained, when sanctioned or denied by the law. Most assuredly the rule is equitable and just, but where interest, eo nomine, is asked for on the amount demanded as damages, it must be allowed or denied as provided in the statute. All the obligations of individuals to each other result from either a promise, a benefit, or an injury, and when the obligation has the sanction of the law, the interested party may compel performance. Under this classification the obligation of the defendant was to repair the injury done by the illegal conversion, but it did not certainly extend to the obligation to pay interest, for that is a separate and distinct obligation, which could exist only by contract, and in the absence of any express agreement under the provisions of the law itself; for it has been repeatedly said that interest is a creature of the law. The law-making power in Montana has undertaken to regulate the rates of interest, and to specify the contracts and debts which shall bear interest, in the absence of any express agreement therefor. To be more exact, section 1236, division 5, Compiled Statutes, provides the legal rate of interest where there is no agreement, while section 1237 provides that creditors shall be allowed to collect interest at the above rate, in the absence of any agreement, upon all moneys after they become due on any bond, bill, promissory note, or other instrument in writing, and on any judgment from the date of entry, on money lent, or due on a settlement of accounts from date of settlement, on money received to the use of another and retained without the owner’s knowledge, and on money withheld by unreasonable and vexatious delay. In none of these classes can the demands of the plaintiff be included.This statute regulates interest in a variety of cases in which there is no agreement, and it will be noticed that it includes all kinds of demands except those for damages or unliquidated claims. After enumerating such a number of cases in which interest is to be allowed in the absence of any agreement, it is hardly to be contended that it would leave open the question of interest on so important a subject as that of damages. We have no doubt that it was never the intention of the law to allow interest on demands for damages from the date of the act complained of, but only from the date of the damage when ascertained by judgment. It is said that section 1237 regulates the interest only upon those matters where the relation of creditor and debtor exists, leaving to the general law of damages the question of interest. A careful analysis will readily demonstrate the fallacy of the proposition. The relation of creditor and debtor is not more apparent in the matter of open and unsettled accounts than in that of the injured party, to be compensated by the wrong-doer for the injury he has occasioned. The implied promise on the part of the individual who gets the goods is to pay for them, and on the part of the trespasser to pay for the injury occasioned by his acts. To all intents the injured party is as much the creditor of the wrong-doer as the person who has parted with his goods without first receiving the express promise to pay. In both instances the law makes the contract; in the one case it obliges, and in the other it implies a promise to pay. The subtle distinction that the law of interest as it exists in section 1237 applies only to contract matters, or those in which the relation of debtor and creditor exists by express or implied promise, does not seem to be well founded; but rather the general rule is deducible that interest is not to be allowed on any demands except from the day on which the exact amount due is ascertained. Does any reason satisfactory to the mind exist, why interest should be denied to the creditor until there has been a settlement agreed upon, and yet allowed on an unascertained and disputed demand for damages, long before it can be known whether any debt or liability on the part of the defendant actually exists. In order to determine in this action whether any debt, and if so, what amount actually existed on the part of the defendant, it took the judgment of the court to so decide. That this was the view of the Supreme Court in 1872, when the case of Isaacs v. McAndrew was decided (reported in 1 Mont. 454), cannot be doubted. That was a demand for interest on money expended for the benefit of another, yet the court said, in denying the right: “However reasonable the claim for interest may be in the present case, we must administer the law as we find it, and not take upon ourselves the duties of the legislature.” In 1880, the case of Randall v. Greenhood (reported in 3 Mont. 512) was decided, in which the demand was for damages on account of the conversion of a stock of goods, and interest being allowed from date of conversion, it was stricken out as not permissible under the statute. Our attention is called to the case of Bohm v. Dunphy, 1 Mont. 333, decided by Chief Justice Warren in 1871, where he follows the usual rule of damages, with interest from date of conversion; but it cannot be a case in point because the question of interest eo nomine under the statute was not raised or considered by the court, and hence it is not in conflict with either of the cases above referred to, but rather supports the rule announced. I take it to be the rule, in the absence of any agreement, that interest eo nomine will not be allowed except when the statute permits. This construction of the statute is under the well-known rule of interpretation found in the maxim of expressio warns est exelusio alterius. Having specified the cases in which interest shall antedate the judgment, the natural conclusion is that the law-maker intended to exclude or deny the right in instances not so enumerated. While we admit the general rule in actions of this kind to be the value of the property, and interest when it is allowed by law, yet it is always in the power of the pleader by proper averments to recover the actual damages sustained by the injured party. After a careful examination of the authorities referred to by Sutherland on Damages, and in the brief of counsel for plaintiff, we have been unable to find any decision in which the question of interest on such demands under the statute was ever decided. The matter is purely one of statutory construction, and after a lapse of sixteen years we do not think it wise to disturb the practice thereon. The expression in the opinion denying the right to capitalize the interest up to the date of judgment by including it therein was an error, and we hasten to make the correction. Such has been the practice in this Territory as well as in California, from whence we derive our statute on this subject, and the authorities from that State are numerous and unbroken that such is the proper practice and construction. Although the judgment of the District Court in respect to interest has been reduced, yet inasmuch as the defendant failed to call the attention of the lower court to the error in the judgment, and was therefore somewhat to blame, we think he should bear the burden of the costs of this appeal, at least this rule follows that of Randall v. Greenhood, above referred to. The opinion heretofore rendered in this case is modified to the extent of placing the costs of this appeal on the defendant. With the exception of this modification, our former judgment must remain undisturbed.

De Wolfe, J., concurs.