I concur in the conclusion reached in the foregoing opinion on petition for rehearing, but am not in accord with the theory therein expressed to the effect that the rate of interest on money due, can be made dependent upon anything other than the statute governing that subject. Our statute, fixing the legal rate of interest and the date from which it is to be computed, is section 26-1904, as amended by chapter 197, Session Laws 1933, page 390, as follows:
"When there is no express contract in writing fixing a different rate of interest, interest is allowed at the rate of six cents on the hundred by the year on:
"1. Money due by express contract.
"2. Money after the same becomes due.
"3. Money lent.
"4. Money due on the judgment of any competent court or tribunal.
"5. Money received to the use of another and retained beyond a reasonable time without the owner's consent, express or implied.
"6. Money due on the settlement of mutual accounts from the date the balance is ascertained. *Page 558
"7. Money due upon open accounts after three months from the date of the last item."
Subsection 2 is controlling. The money which appellant is entitled to recover, and for which she has a lien on the premises, became due April 2, 1937, when respondents repudiated the void contract and went into possession of the hotel, as pointed out in the opinion by the chief justice on petition for rehearing. The court is governed by the statute and is without arbitrary power to fix the amount of interest recoverable according to its ideas of justice.