Rehearing denied and former opinion modified November 15, 1927. ON PETITION FOR REHEARING. (260 P. 1099.) Appellants, in a petition for rehearing, urge that the Circuit Court erroneously included in the judgment interest for $1,400 from November 13, 1917, the date of the execution of the lease. It is contended that plaintiff is entitled to interest only from the date of the entry of the judgment on November 24, 1924. Plaintiff did not demand interest in the complaint and the jury did not include it in its verdict. It is to be borne in mind that this is an action to recover damages for the breach of a contract. It is so denominated in the complaint and in the brief of counsel for respondent. If plaintiff in any event is entitled to interest it is by reason of *Page 481 the fact that it is a part of the damages sustained. The jury found that the plaintiff was damaged in the sum of $1,400. It was unquestionably error for the trial court to increase the amount of damages by awarding plaintiff interest from the date of the execution of the lease. As stated in Ferguson v. Reiger,43 Or. 505 (73 P. 1040):
"If the recovery of money or damages be demanded, the amount thereof shall be stated, and, as interest after the breach of a contract is recoverable only as damages (Seton v. Hoyt,34 Or. 266 (55 P. 967, 75 Am.St.Rep. 641, 43 L.R.A. 634); Close v. Riddle, 40 Or. 592 (67 P. 932, 91 Am.St.Rep. 580 and note), the failure to demand the same in the complaint rendered the judgment therefor erroneous."
Also see Sutherland on Damages (4 ed.), § 387.
Interest on $1,400 at the legal rate for a period of seven years from the time of the execution of the lease to the date when the judgment was entered amounts approximately to $588. It is clear that the judgment should be modified by eliminating interest to date of entry of judgment. This modification entitles defendants to costs and disbursements in this court: Propst v.Wm. Hanley Co., 94 Or. 397 (185 P. 766); Parks v. Smith,95 Or. 306 (186 P. 554). They were obliged to appeal from an erroneous judgment and have prevailed here to the extent of substantially reducing the judgment entered by the Circuit Court.
Judgment is herewith rendered in favor of plaintiff against the defendant Mortgage Company Holland-America, a corporation, for the sum of $1,400, *Page 482 together with interest thereon at the legal rate from the date of the entry of judgment in the lower court.
MODIFIED.
RAND, C.J., and McBRIDE and COSHOW, JJ., concur.