Denied June 19, 1917.
On Petition for Rehearing.
(164 Pae. 1184.)
Petition for rehearing. Rehearing denied.
Messrs. Reed & Bell, Mr. Charles W. Fulton and Mr. T. M. Dye, for the petition.
Messrs. Beach, Simon & Nelson, contra.
*580Department 1.
Mr. Justice Harrisdelivered the opinion of the court.
The original opinion awarded the plaintiffs a judgment for $20,000 without interest. The plaintiffs insist that they are entitled to interest on $20,000 from July 15,1911.
The defendants honestly and in good faith denied and litigated the right of plaintiffs to recover; and therefore if the rule announced in Baker County v. Huntington, 48 Or. 593, 603 (87 Pac. 1036, 89 Pac. 1044), is adhered to, it would prevent the allowance of interest. There is, however, a more persuasive reason for disallowing interest.
4-6. In the absence of a contract to pay interest the right to exact it must he found in the statutes. Sorenson v. Oregon Power Co., 47 Or. 24, 34 (82 Pac. 10). Before the plaintiffs can successfully claim the allowance of interest they must show that they come within the terms of Section 6028, L„ O. L., as it read prior to the amendment found in Chapter 358,-Laws 1917. The plaintiffs have not brought themselves within any clause of Section 6028, L. O. L., as that statute is interpreted by Sargent v. American Bank and Trust Co., 80 Or. 16, 42 (154 Pac. 759, 156 Pac. 431), unless they are within the clause which allows interest “on money received- to the use of another, and retained beyond a reasonable time, without the owner’s consent, expressed, or implied”; and, hence, we must first determine the meaning of the quoted clause before we can know whether it is available to the plaintiffs. Interest statutes are in derogation of the common law and for that reason must be strictly construed: 22 Cyc. 1481. The action prosecuted by the plaintiffs assumed the form of the “equitable action” commonly designated as an action for money had and received. The basis *581of the claim of the plaintiffs was that the defendants had $20,000 which in justice and good conscience ought to be paid to the plaintiffs; and it was upon this theory that the judgment was rendered against the defendants: Hoyt v. Paw Paw Grape Juice Co., 158 Mich. 619 (123 N. W. 529); Todd v. Bettingen, 109 Minn. 493 (124 N. Y. 443); Ulbrand v. Bewiett, 83 Or. 557 (163 Pac. 445, 446); 27 Cyc. 854. Applying the rule of strict construction the language of the clause quoted from Section 6028 is not sufficiently comprehensive to include the instant case. If A pays money to B to be given to 0, the money has been received by B to the use of 0. From the moment of the payment to B the money belongs to 0 and not to B, for it was in fact received for the use of C and at no time is B the owner of the money. Interest can be allowed only when two elements combine: (1) The money must be received to the use of another; and (2) it must be retained beyond a reasonable time without the owner’s consent. When the statute speaks of money received to the use of another it means money which in fact is received to the use of another; it does not include money which, by the aid of a legal fiction interposed after the actual receipt of the money, is treated as money received to the use of another; it means money that is received to the use of another as distinguished from money which is merely regarded as money received to the use of another. That this interpretation is not unduly narrow is confirmed by the words “and retained beyond a reasonable time, without the owner’s consent.” The statute contemplates that the person who actually has the money is at no time the owner, but he has only received the money to the use of another who is in truth the owner during all the time. When the statute speaks of the consent of the owner it necessarily signi*582fies tliat some person otlier than the holder of the money is in fact, and not by reason of a fiction, the owner. While the conclusions expressed in Graham v. Merchant, 43 Or. 294, 311 (72 Pac. 1088), have neither been overlooked nor ignored, nevertheless, a strict construction of the interest statute will not permit the plaintiffs to recover interest. The petition is denied.
Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Burnett concur.