This case is before the court on the second petition for rehearing; the first petition having been denied on the 2d day of September, 1915. The first ground for rehearing is based upon the fact that the court erred in overruling the demurrer to the plaintiff's petition. That question was passed upon in the original opinion, and we see no reason for changing our views at this time in that regard.
The second ground goes to the question of certain amendments to the petition, claimed by counsel for plaintiff in error to have been made after trial of the case and judgment. Counsel for plaintiff and defendant did not agree upon that question, and this court was not inclined, under the circumstances, to enter into a trial of that issue. We are still of the opinion that no sufficient showing was made to justify this court in going into that matter, and for that reason cannot sustain the second ground for rehearing.
The third ground is that there is not sufficient evidence to support the verdict and judgment, for the reason *Page 472 (a) that there was no evidence introduced tending to show the extent of the damage sustained by the defendant, because of the wrongful conversion of the property; and (b) that there was no evidence introduced tending to show that the alleged acts constituting the fraudulent conversion of the property were ever communicated to the plaintiff. Upon the first proposition, we find that there was no controversy as to the price agreed to be paid for the property converted, and no question raised as to its value. As we looked at it then, and still view it, the damage for the wrongful conversion was the value of the property, with interest. We see no reason why a rehearing should be granted on either of these contentions.
The fourth ground for rehearing is based upon the fact that interest was allowed on the value of the property converted, when the action was based upon a tort, and to recover damages for the commission thereof. We cannot sustain counsel in that contention, for the reason that the statutes of this state provide that the measure of damages for the wrongful conversion of personal property is the value of the property at the time of the conversion, with interest. Section 2910, Comp. Laws 1909, which was in force at that time, is as follows:
"The detriment caused by the wrongful conversion of personal property is presumed to be:
"1. The value of the property at the time of the conversion, with the interest from that time; or,
"2. Where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and,
"3. A fair compensation for the time and money properly expended in pursuit of the property." *Page 473
This section was passed upon by the Supreme Court of the territory in Drumm-Flato Com. Co. v. Edmisson, 17 Okla. 352,87 P. 314, in which the court says:
"In the case of a wrongful conversion of personal property, under the provisions of our statute, a party is entitled, as a matter of right, to recover interest from the date of the conversion" of personal property, "and it would be erroneous for the court to submit an instruction that it rests within the discretion of the jury."
In Prinz v. Moses (Kan.), 66 P. 1009, it was held:
"In an action for damages for wrongful seizure and conversion of goods, the measure of damages is the market value of the property when taken, with interest."
Practically all the state and federal courts hold the doctrine.
The only question involved in the case upon which we have any doubt, is the rate of interest that should be allowed. Personally the writer hereof is of the opinion that the rate of interest named in the contract, under which the property was obtained, should be allowed. That was undoubtedly the theory of the jury, as well as the trial court; but, lest we may be mistaken, we will modify the original opinion to that extent, and fix the interest at 6 per cent.
The second petition for rehearing should be denied, and the case affirmed in all particulars, except that the trial court should be directed to enter judgment for the sum of $505, with interest at 6 per cent. from the 10th day of July, 1909.
By the Court: It is so ordered. *Page 474