ON PETITION FOR REHEARING.
•AILSHIE, J.-In this case the appellant has filed a petition for a rehearing in which he claims that the court in the original opinion allowed an excessive amount against him and that some of the items constituting the amount awarded are unauthorized by the evidence. Among other things, he claims that he has been overcharged in the sum of $1,582 for sheep taken; that he should have been allowed for the costs and expense of keeping -and caring for the sheep that were returned; and that he should have also been allowed for such loss of sheep as was not occasioned by the negligence or wrongful act of appellant. He also complains of the allowance of interest at the rate at which it was figured by the court; and, lastly and chief of all, the contention made by appellant is that he should be granted a neiv trial, for the reason that the ease was submitted to the jury on an instruction that they could allow punitive and exemplary damages and that the verdict was returned on that theory, rendering it now impossible for this court or anyone else to determine how much of the verdict was made up of punitive damages and how much of actual damages.
There is undoubtedly merit in this last contention. There can be no doubt, however, of the power and authority of this court under sec. 3818, Kev. Codes, to “modify any order or judgment .appealed from.” It is nevertheless apparent in this case that after we determined that the respondent was *731not entitled to recover punitive or exemplary damages, we were under the necessity of ascertaining from the record and computing ourselves the amount of actual damage sustained by the respondents. In doing so, we had to determine a standard of values and a class of proofs which we would follow in arriving at the amount to be allowed, and so we said: “The evidence of damages sustained by the plaintiffs by reason of taking the sheep and the loss sustained by reason of the loss of the sheep so taken is very much in conflict, but we are inclined to give the respondents therein the full benefit of the proof and allow the highest estimate the jury could form from the evidence”; and accordingly made our computation upon the basis of the most favorable evidence to the respondents. In the light of the contentions made by appellant in his petition for rehearing and of the further fact that respondents have also filed a “petition for reconsideration of amount allowed respondents,” and therein call our attention to certain errors and inaccuracies in the computation of the amount to be allowed, we have concluded that it would best serve the ends of justice to order a new trial in this case, and so we have decided to vacate the order and judgment of the court, in so far as it directs that judgment be entered for a specified amount in favor of the respondents, and on the contrary, order and direct that a new trial be had upon the theory of the law and in harmony with the views expressed in the original opinion herein.
The respective counsel in their petitions admit that there is and has been throughout a confusion of figures as to the number of sheep taken and the number accounted for and the number that should in justice be charged to the appellant. Counsel for respondent admits that the court has charged appellant with 141 head of old sheep that had been accounted for. On the other hand, respondents contend that they should have been' given a credit for the 1906 wool clip and that by making these two corrections respondents would still be entitled to a larger judgment than that ordered by the original opinion in this case.
*732The more we consider the record in this case and the various and divergent views expressed by counsel in their briefs and petitions for rehearing, the more we are convinced that the evidence ought to be submitted to a jury where all the proofs may be gone into fully with a view to arriving at a correct estimate of the actual damages, free from all notion of inflicting any punitive or exemplary penalty on the appellant.
The court’s instruction to the jury with reference to the wool clip of 1906 was correct and would preclude any recovery by respondents from appellant for the wool grown for that year.
The legal rate of interest in the state of Washington may also be ascertained and allowed on the value of the property converted, and likewise as to the Elsensohn and Libert deficiency judgments from the date of entry until paid. The value of the 1907 wool clip from the sheep returned and subjected to the foreclosure sale will be ascertained in the manner indicated in the original opinion herein.
The judgment is reversed and a new trial is hereby ordered. Costs of this appeal will be divided equally between the parties.
Stewart, C. J., and Sullivan, 'J., concur.