PPEAL by defendant from a judgment | Utah, 341, 53 Pac. 994; Easterbrook v. Farof the District Court for Weber Coun- quharson, 110 Cal. 311, 42 Pac. 811; Swinty in favor of plaintiff in an action brought nerton v. Argonaut Land & Development Co. to recover damages for injury to live stock 112 Cal. 375, 44 Pac. 719; Vietti v. Nesbitt, during transportation. Affirmed. 22 Nev. 390, 41 Pac. 151.

ler, Nebraska, for a period of thirty-two the respondent alleged the destination of the hours, without providing any facilities to feed and water them; that said sheep were confined in the cars of appellant without food or water for a period of seventy-two hours, by reason of which a large number of lambs died; that the others shrank in weight; that all that did not die were by such negligent delay in transportation affected thereby; and that respondent was compelled to and did sell them for 50 cents on the hundredweight less than they would have sold for if they had been promptly and seasonably transported and delivered at the place of destination. In view of the errors assigned, the pleadings need not be further noticed, except in the following particular: In both the first and amended complaints, time when due by the terms of the agreement, or for neglect to pay a debt after a special demand.”

In an action for work and labor, interest is due from the time of demand. Berner v. Bagnell, 20 Mo. App. 543.

In Wisconsin there seems to have been a conflict of authority and a difference in the application of the rule as to interest in actions for unliquidated demands. But all the cases were reviewed in Laycock v. Parker, 103 Wis. 161, 79 N. W. 327 (an action on a contract), and the New York rule was adopted, and it was held that if there was a reasonably certain standard of measurement by the correct application of which one could ascertain the amount he owed, he should pay interest, and that a demand was a proper time to start interest.

So in an action for services, it was held that interest should be allowed from the date of demand. Farr v. Semple, 81 Wis. 230, 51 N. W. 319.

In other cases, interest was allowed from the commencement of the action.

In an action of assumpsit for work and labor performed, it was held that the plain tiff was entitled to interest from the commencement of the suit. Goddard v. Foster, 17 Wall. 123, 21 L. ed. 589. This was an action by an agent, selling cargoes and refitting vessels, for his share of the profits and for his agreed compensation.

And in an action on a bond conditioned to pay for labor and material furnished in the erection of a lighthouse, it was claimed that a party was not entitled to interest on unliquidated claims until after demand. It was held that the service of the summons and complaint was sufficient demand to set the interest running. Dwyer v. United States, 35 C. C. A. 488, 93 Fed. 616.

In Mulligan v. Smith, 32 Colo. 404, 76 Pac. 1063, an action for services, it was held that the commencement of a suit was equivalent to a demand, and after the institution of suit, in the absence of any averments in the complaint as to the date when payment was demanded, the debt would draw interest at the legal rate.

In an action for services rendered, where

sheep to have been Omaha, Nebraska, but in the second amended complaint alleged the destination as Chicago, Illinois. This amendment was allowed by the court upon due notice and argument and a long time prior to the trial of the cause, but the same was allowed over appellant's objection and exception. The cause was, by the consent of the parties, tried to the court without a jury, and the court specifically found that the death of the lambs, the shrinkage in weight, and the loss in price, as alleged by respondent, were all due to the negligence of appellant in delaying the sheep at Schuyler, Nebraska, for thirty-two hours, and in not providing facilities for food and water for the sheep for a period of seventy-two hours, the amount was unliquidated, plaintiff was allowed interest from the commencement of the action. Mercer v. Vose, 67 N. Y. 56; McCollum v. Seward, 62 N. Y. 316.

In an action on disputed accounts for attorneys' services, interest was limited to the date of the commencement of the action. Hand v. Church, 39 Hun, 303.

The

In Adams v. Ft. Plain Bank, 36 N. Y. 255, an action for professional services, it was held that interest should be allowed. court said: "The principle which governs the allowance of interest was clearly enunciated in Van Rensselaer v. Jewett, supra, that whenever a debtor is in default for not paying money in pursuance of his contract, justice requires that he should indemnify the creditor for the wrong which has been done him, and just indemnity, though it may sometimes be more, never can be less, than the specified amount of money, with interest from the time of the default until the obligation is discharged. And if the creditor is obliged to resort to the courts for redress, he ought, in all such cases, to recover interest in addition to the debt, by way of damages."

In an action to set aside as fraudulent a preferential conveyance given partly in consideration of several years' labor by the grantor's son, and partly for future support, it was held that the grantee had a claim against the estate for the amount due for services, but that the demand being unliquidated, interest should not have been allowed prior to the conveyance. Robinson v. Stewart, 10 N. Y. 189.

In Yates v. Shepardson, 39 Wis. 173, in a suit for professional services that were disputed, it was held that interest ran from the commencement of the suit. There was no evidence of an earlier demand.

An uncertain claim for services rendered, that was denied and contested, is not entitled to interest until from and after the commencement of the suit. Tucker v. Grover, 60 Wis. 240, 19 N. W. 62.

In other actions for services it has been held that the plaintiff was entitled to interest from the time the balance was due.

Thus, in assumpsit on quantum meruit

and in confining them in cars for that length of time without food and water. The court also found the loss and damage to respondent for each item separately; that is, for loss by death, by shrinkage in weight, and for loss in price by reason of the condition of the sheep, caused by the negligent delay in transportation and in not providing facilities to feed and water them. On the whole amount of damages as found, the court allowed legal interest, as appears from the findings, from the date on which respondent made demand on appellant for damages for the injury and loss. It is not very clear, however, whether the court intended to allow interest from the date the sheep were delivered at Chicago, the place of destination, or from the date of demand for services extending through years, interest is properly allowed by the referee by computing the balance due at the end of each year, and allowing interest on such balance. Tucker v. Preston, 60 Vt. 473, 11 Atl. 726.

And in assumpsit interest is proper upon a balance due for work and labor. Baker v. Central Vermont R. Co. 56 Vt. 302. The court said: "Where the claim in suit, in actions ex contractu, is unliquidated, interest is always given upon the sum found due, from the time the demand was payable. It is said that interest is allowed as damages for the detention of the debt; but the giving of such damages is not within the discretion of either court or jury; it is the right of the party, after establishing a contract demand, to have interest added from its maturity in all cases, including those where the contract is silent on the subject. Whenever a debtor neglects to pay, after it is his duty to pay, interest is recoverable; and the debtor is not relieved from its payment, upon what is really due, by showing that the creditor made too large a demand upon him."

by respondent. In our view, for the purposes of this decision, it makes no difference from what date the court computed interest, because the date from which it was computed, as appears from the record, was subsequent to the date of delivery of the sheep at their destination. The court entered judgment for the amount found as damages, with interest thereon, as aforesaid, against appellant, and hence this appeal.

There are but two assignments of error argued; indeed, in the state of the record, no other assignment could be reviewed by this court. The first error assigned and argued is the one that the court erred in permitting the second amendment of the complaint, changing the place of destination of the shipment from Omaha to Chicago. This secwhich the work is completed. Sullivan v. Nicoulin, 113 Iowa, 76, 84 N. W. 978.

And in an action for wages, it was held that although interest was not expressly claimed, the jury could allow interest from the time the wages became due under the contract, where the aggregate of the verdict was less than the amount sued for. Ansley v. Jordan, 61 Ga. 482.

In an action of assumpsit for services, interest could be allowed. Still v. Hall, 20 Wend. 51. The court said: "The referees were correct, therefore, in allowing it, unless the principal sum stood open for liquidation, by the testimony offered in abatement. If so, and damages had been proved and deducted, interest should not have made a part of the balance found. 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 al

lowed."

In McCormack v. Lynch, 69 Mo. App. 524, which was action for work and labor, where the amount of damages was fixed, and the court properly directed interest to be added, the court said: "The general rule undoubt

liquidated damages or for an uncertain demand. Dozier v. Jerman, 30 Mo. 216. But under the evidence we think it cannot be fairly said that the plaintiff's claim for damages (if he had any at all) was unliquidated or uncertain."

Marsh v. Fraser, 37 Wis. 152, was a suit on quantum meruit for labor and services in moving a building, with no time of payment fixed, and no evidence of demand. For these reasons interest from the time of perform

In an action for work and labor for saw-edly is that interest is not recoverable on uning logs, the defendants claimed damages for delay, and it was held that the damages might be measured by the rate of interest on the value of the logs for the period of delay, if the value of the logs had not changed. Grosvenor v. Ellis, 44 Mich. 452, 7 N. W. 59. The court said: "It is true that, as to this last item, the defendants were not entitled to interest as such, but the circumstances may have been such that the rate of interest constituted a very fair measure of the damages actually suffered. Suppose, for example, the defendants by the delay were deprived for a year of the opportunity of putting their lumber upon the market, as they intended and desired, and in the meantime the market price remained stationary; nothing could be nearer exact justice than to award damages equivalent to the lawful interest."

And in an action for work and labor, interest should be allowed from the date on

ance was held erroneous.

for work, labor, and services, where no deIn an action on an unliquidated account mand was made before suit was brought, it was held in Doyle v. St. James Church, 7 Wend. 178, that interest should not be allowed.

Where the amount due cannot be readily ascertained, the rule is that interest will not be allowed.

This was held in an action for work and labor, where both parties had broken the

the damages strictly to the injury and consequent loss occasioned by the neglect of appellant on its own line of road, and appellant was thus not prejudiced by the amendment. The contention of appellant, we think, is answered in this respect in the case of Missouri, K. & T. R. Co. v. Truskett, 2 Ind. Terr. 633, 53 S. W. 444. This assignment, therefore, cannot be sustained.

ond amendment may have been caused by answer itself. Moreover, the court confined the statement contained in the appellant's answer to the first amended complaint, wherein it denied that the destination of the sheep was Omaha, and alleged that the destination was in fact Chicago, not Omaha. And it may have been due to the fact that the plaintiff alleged Omaha in his first complaint, because that was the end of appellant's line of road. The change made by the amendment was not a change or de- The next and only other assignment of parture from the original cause of action. error relates to the allowance of interest Casady v. Casady, 31 Utah, 394, 88 Pac. 32. by the court on the amount of damages The delict of the appellant-the cause of found to have been sustained by the redamages and the amount thereof-was al- spondent. Appellant asserts that, this beleged precisely the same in all the coming an action for unliquidated damages plaints. Neither could the appellant have sounding in tort, therefore interest cannot been misled thereby, as appears from the legally be allowed until the loss or damage

contract, and the quantity of work performed and quantity of material furnished and prices could not be readily ascertained by defendant, and the claims were unliquidated. Delafield v. Westfield, 41 App. Div. 24, 58 N. Y. Supp. 277, affirmed in 169 N. Y. 582, 62 N. E. 1095.

And in an action to enforce a mechanics' lien, and a counterclaim for damages, where the court was not able to ascertain the amount, and the claim for extra work was disputed. Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11, 106 Am. St. Rep. 493, 73 N. E. 494, following Delafield v. Westfield, supra.

And in an action on an unliquidated claim against an estate for nursing, where there was no agreement as to any scale of prices. DeWitt v. DeWitt, 46 Hun, 258.

So, in an action on an unliquidated claim for work, labor, and services as an attorney. Gallup v. Perue, 10 Hun, 525. The court said: "The services were all performed under one retainer, but the demand for the services remained unliquidated, to be determined on proof of value, as no rate of compensation had been agreed upon between the parties. The statute fee bill, although evidence bearing on the question, does not determine the value and amount as between attorney and client."

And in an action where a claim for board and lodging was unliquidated and there was no way of determining the price or value. Holmes v. Rankin, 17 Barb. 454.

In an action of mandamus to compel a board of supervisors to allow a claim of an attorney for services rendered to excise commissioners, it was held that the relator was not entitled to interest, as the demand had never been adjusted, and there was no proof to establish a custom to charge interest, which was known to both parties. People ex rel. Johnson v. Delaware, 9 Abb. Pr. N. S. 408.

On a claim against an estate for services, where no price was agreed on for wages, and the amount was unliquidated, no interest was recoverable until the amount of the claim was ascertained. Pursell v. Fry, 19 Hun, 595; Smith v. Velie, 60 N. Y. 106.

In an action of assumpsit for services where the account was disputed, interest was not allowed. Griggs v. Ganford, 50 Ill. App. 172.

In an action to recover the value of services, the value of which was not susceptible of ascertainment by computation, plaintiff was not entitled to interest prior to the verdict or judgment. Swinnerton v. Argonaut Land & Development Co. 112 Cal. 375, 44 Pac. 719.

And where the amount of services and value could only be ascertained by evidence in court, and not by computation, the plaintiff was not entitled to interest prior to the verdict. Cox v. McLaughlin, 76 Cal. 60, 9 Am. St. Rep. 164, 18 Pac. 100; Swinnerton v. Argonaut Land & Development Co. supra.

In an action for services rendered, where the amount was in dispute and unliquidated, and there was no express agreement to pay interest, it was not allowed. Hawley v. Dawson, 16 Or. 344, 18 Pac. 592.

And where an action was brought to recover for the value of material and labor furnished, and the sum owing was uncertain and unascertainable by computation at the time of the commencement of the action, and it depended not only upon what was found to be the reasonable value of the material and services, but also on the amount which ought to be deducted, and this was uncertain, interest was not allowed. Stephens v. Phoenix Bridge Co. 71 C. C. A. 374, 139 Fed.

248.

An unliquidated claim against the state for services as attorney does not bear interest. State ex rel. Sloan v. Warner, 55 Wis. 271, 9 N. W. 795, 13 N. W. 255. This was on the ground that the amount due for services would depend on proof of value, and this would be a question for a jury.

And where plaintiff in assumpsit demanded more than his services were worth, interest was allowed only from the time of the verdict. Shipman v. State, 44 Wis. 458. The court said: "The better rule of law is, that when the right of the party to recover his compensation under the contract is doubtful, and is contested on reasonable grounds, and the amount due him requires to be adjust