On Petition for Rehearing.
(130 Pac. 1133.)
Mr. Justice Eakindelivered the opinion of the court.
9. On the motion for rehearing defendant urges that there is no evidence to justify the verdict in the sum of $901.28, for the reason that the purchase price at Orenco of the trees proved to have died, according to the testimony of plaintiff, was only $549.81. Testimony was offered by plaintiff, but excluded by the court, that the price plaintiff was to receive for these same trees was $938.37. However, he-was allowed to state that the real value thereof was $1,017.25; and to *28a former question he was allowed to state the.total amount or value of those trees that died to be $1,000. Neither of those statements was of fact, but they were conclusions, and it is not shown upon what they were based; they were not confined to the value or purchase price at Orenco, and were not entitled to consideration by the jury.
Decided June 10, 1913.10. As we understand the evidence, the answer of plaintiff to the question (transcript of testimony, page 96), “I will ask you to state to the jury the price charged .you by the Oregon' Nursery Company on those dead trees,” was the correct statement of plaintiff’s damage. He had previously testified to each lot of trees, with the name of the purchaser, and in' the answer he names each purchaser, the number of dead trees in each lot, and the amount paid the Oregon Nursery Company therefor, amounting in all to $549.81. . The jury allowed plaintiff for freight paid by him $78.88, so that the amount of the verdict should have been $628.69, less the amount due from plaintiff to defendant in the sum of $157.59, which leaves the amount for which judgment should have been rendered $471.10.
The opinion will be modified accordingly, and under the provisions of Section 3 of Article YII of the Constitution, as amended (see Laws 1911, p. 7), this court will direct judgment to be entered for that amount, appellant to recover the costs on this appeal.
Modified on Rehearing.
On Petition to Recall Mandate.
(132 Pac. 956.)
Mr. Justice Eakindelivered the opinion of the court.
11. Plaintiff moves the court to recall the mandate and to allow the judgment to be amended, awarding him *29interest on the judgment from the date of the original judgment of the trial court. This is an action for unliquidated damages. There can he no interest on a claim for damages until the amount is made certain by judgment: Sorenson v. Oregon Power Co., 47 Or. 34 (82 Pac. 10); Baker County v. Huntington, 48 Or. 593 (87 Pac. 1036, 89 Pac. 144). The amount of the damages in this case was not made certain-until determined by this court.
The motion is denied.
Affirmed: Modified on Rehearing. Motion' to Recall Mandate Denied.