I.
COX, J.Defendant objected to any evidence under the petition on the ground that it did not state a ■ cause of action, and that this is an action at law for *495conversion, and could not be maintained on the facts pleaded for the reason that plaintiff only had an equitable interest in the property, if any at all, and, to maintain conversion, he must have the legal title. Under our code system, there is but one form of civil action, and, as against an objection of this character, if the facts pleaded show any right of recovery, the petition must' be held good, and whether we denominate this an action at law for conversion, or for breach of contract for failing to comply with the terms of the mortgage, or was an action in equity, it is clear that if the allegations of the petition are true, the plaintiff has stated therein a cause of action. [Johnson v. Bank, 116 Mo. 558, 22 S. W. 813; Parker v. Rodes, 79 Mo. 88; Tobener v. Hassinbusch, 56 Mo. App. 591; Morse v. Bates, 99 Mo. App. l. c. 564, 74 S. W. 439; Bigler v. Leonori, 103 Mo. App. 131, 77 S. W. 324.]
II.
Defendant also objected to any evidence as to the new matter set up in plaintiff’s reply upon the ground that the reply cannot be used to introduce a new cause of action not declared upon in the petition. As a general proposition his position is correct, Moss v. Fitch, 212 Mo. 484, 111 S. W. 475, but as applied to the facts of this case, his position is untenable. While the reply cannot be used to aid a defective petition, nor for the purpose of introducing a new cause of action, yet when the defendant pleads a counterclaim, as was done in this case, the plaintiff may, by reply, allege new matter not inconsistent with the petition, constituting a defense to the new matter set up in the answer. [R. S. 1899, sec. 607; Rhodes v. Land & Lumber Co., 105 Mo. App. 1. c. 313, 314, 79 S. W. 1145; Rich v. Donovan, 81 Mo. App. 184.]
*496III.
In the submission of issues to the jury they were instructed to compute interest on the value of the goods from March 23, 1907. This was error. Under the statute, the allowance of interest as damages, in cases of this character, is discretionary with the triers of the facts, and a peremptory instruction to include interest as damages is erroneous. [R. S. 1899, sec. 2869; Wheeler v. McDonald &.Co., 77 Mo. App. 213; Meyer v. Phoenix Insurance Co., 95 Mo. App. 1. c. 726, 69 S. W. 639; State ex rel. v. Hope, 121 Mo. 34, 25 S. W. 893; Carson v. Smith, 133 Mo. 606, 34 S. W. 855.]
Plaintiff noAV offers to remit the amount assessed as interest, and, if there were no other errors, this remittitur would save the judgment.
IY.
In submitting the issue as to the value of the property, the court gave the following instruction: “The value therefor, required to be found by you, is the actual market value of the goods at the time and place, and in the situation and condition as they were when possession was taken thereof. That is to say you will find from the evidence the amount that it would have taken on a fair sale or purchase, to ham replaced the goods in Mice quality and quantity and condition as they were in at the time possession was taken thereof (Italics are ours.) The latter part of this instruction was clearly Avrong. The value should have been found as the actual market value at the time- and place, and in the situation and condition as they were when possession was taken thereof, as stated in the first part of this instruction. Under the facts in this case, defendant had the right, under the mortgage, to take possession and to seil the goods, but under no circumstances Avas he bound to replace them. It is impossible to tell Avhether the jury assessed the value of the goods, or the *497cost of replacing them, and this error alone would result in the reversal of this judgment.
Y.
The defendant now contends that, as he advertised and sold the goods under the mortgage, he is relieved, and plaintiff’s recovery must be limited to the amount the goods sold for. This proposition would be correct if he had proceeded with diligence in making the sale, but the evidence shows that he took possession of the goods March 23, and then refused to advertise and sell them, and when plaintiff demanded that he should proceed to advertise and sell, as provided by the mortgage, he refused to do so, and contended that he was not required to sell, and it did not occur to him that this plaintiff had any rights that he was bound to respect until after suit was filed against him. After suit was brought he apparently, awakened to his duty in this respect, and then attempted to screen himself from liability by advertising and selling the property. It was then too late. He had refused to make the sale, and had asserted absolute right and control over the property, and denied that plaintiff had any rights in it, and this amounted to a conversion per se. [Tobener v. Hassinbusch, 56 Mo. App. 591; Hanson v. Skogman (S. Dak.), 105 N. W. 90; Howery v. Hoover (Iowa), 66 N. W. 772; Marseilles Mfg. Co. v. Perry (Neb.), 87 N. W. 544; Allen v. McMonogle, 77 Mo. 478; Rich v. Donovan, 81 Mo. App. 1. c. 191; Miller v. Lange, 84 Mo. App. 1. c. 222.]
VI.
Counsel, in their briefs, on both sides, treat this action as one at law for damages. The trial court, however, proceeded upon the theory that it was an action in equity, and did not submit the general issue to the *498jury, but only took tbeir verdict upon certain questions of fact. We think that the trial court was right in treating the case as one in equity. The prime facts underlying this cause of action are these: Plaintiff was indebted to the bank upon certain notes, and defendant, O. G. Bantley, was surety thereon. To indemnify Bantley, plaintiff gave him a chattel mortgage. Default was made in payment of the notes, and Bantley took possession of the goods under the mortgage, but refused to sell the goods as provided in the mortgage, and did not pay the notes. When Bantley converted the goods to his own use, as the court rightly found that he did, he became liable for the actual value of the goods, and the plaintiff then had the right, in order that • he' might be fully protected, to require an accounting and to ascertain the amount due on the notes', and have them paid out of the value of the goods and then the surplus paid over to him; or, if not sufficient to pay the notes, to have the defendant apply the value of the goods to reduce the debt. This was what plaintiff attempted to do in this case, and what the court attempted to accomplish by its judgment, but to do this effectually would require that all the parties in interest be made parties to the suit, so that the judgment, when entered, would be binding on all.
The plaintiff should have requested the bank, who was then the holder of the notes, to join with him in this action as plaintiff, and had it refused to do so, he should have made the bank a party defendant, as provided by statute. [R. S. 1899, sec. 544; McNear v. Williamson, 166 Mo. 358, 66 S. W. 160.]
The evidence in this case raises some doubt as to Avhether the notes to the bank have been paid, or are noAV the property of Roland. On a re-trial of the case, plaintiff should either pay these notes and amend his petition accordingly, or, at least, amend so as to bring in the supposed owner of the notes, so the whole matter can be adjudicated.
*499For the errors noted, the judgment will be reversed and the cause remanded.
Gray, J., concurs. Nixon, P. J., having been of counsel, not sitting.