sachusetts.1 The court, by Holmes, J., said: Interest "is allowed as of right in trover and other like actions; and although it is suggested that in such cases the defendant may be presumed to have had the use of the goods since the conversion, this is not necessarily the fact, and if it were, would have no bearing on the indemnity due the plaintiff. We will assume that the sum ultimately found by the jury cannot be said to have been wrongfully detained before the finding, in such a sense that interest is due eo nomine. But we have heard no reason suggested why, if a plaintiff has been prevented from having his damages ascertained, and, in that sense, has been kept out of the sum that would have made. him whole at the time, so long that that sum is no longer an indemnity, the jury, in their discretion, and as incident to determining the amount of the original loss, may not consider the delay caused by the defendant. In our opinion they may do so; and, if they do, we do not see how they can do it more justly than by taking interest on the original damage as a measure." In Pennsylvania there are discordant expressions in the opinions as to the right to interest in tort actions; the latest cases, however, establish the rule that it cannot be allowed as such, but that in computing the damages the time elapsed since the cause of action arose may be considered. In

App. 350, and Missouri cases cited.
See Black v. Camden & A. R. & T.
Co., 45 Barb. 40; Richmond v. Bron-
son,
5 Denio, 55; Lakeman v. Grin-
nell, 5 Bosw. 625.

actions of tort, or in actions of any kind where the damages are not in their nature capable of exact computation, both as to time and amount. In such cases the party chargeable

1 Frazer v. Bigelow Carpet Co., 141 cannot pay or make tender until both Mass. 126 (1886).

2 See Pittsburgh Ry. Co. v. Taylor, 104 Pa. St. 306; Alleghany v. Campbell, 107 id. 530; Railroad Co. v. Gesner, 20 id. 242; Delaware, etc. R. Co. v. Burson, 61 id. 380.

ទ Plymouth v. Graver, 125 Pa. St. 24; Pennsylvania, etc. R. Co. v. Ziener, 124 id. 560; Emerson v. Schoonmaker, 135 id. 437; Richards v. Citizens' N. Gas Co., 130 id. 37; Reading & P. R. Co. v. Balthaser, 126 id. 1. In Richards v. Gas Co., Mitchell, J., said interest cannot "be recovered in

the time and the amount have been ascertained, and his default is not therefore of that absolute nature that necessarily involves interest for the delay. But there are cases sounding in tort and cases of unliquidated damages, where not only the principle on which the recovery is to be had is compensation, but where also the compensation can be measured by market value or other definite standards. Such are cases of the unintentional conversion or destruction of property, etc. Into these cases the

6

8

12

Indiana the jury in ascertaining the damages resulting to lands from the wrongful removal of material therefrom may, in their discretion, add interest to the damages without finding that there has been unreasonable delay of payment. The tendency is to increase the number of actions in which the jury may allow interest as damages; but this may not be done where exemplary damages are given at discretion. There is a divergence of view as to the right to interest on damages resulting from the killing of animals by the negligence of railroad companies. Under the statutes of Missouri,* Colorado, Georgia, Kansas' and Illinois interest is not allowed. It is otherwise in Minnesota, Arkansas 10 and Alabama" from the time of the injury, and in Wisconsin 1 from the commencement of the action. If the statute makes the company liable for double the damage the owner of the animal has sustained interest on the value of it is not recoverable.13 A distinction has been made in respect to interest in cases of an agent or trustee becoming liable for property in his hands. [630] between loss by negligence and misfeasance. Where his liability is not for any actual or intended benefit to himself, as by conversion of the property to his own use, he is element of time may enter as an im- Ga. 397; Ratteree v. Chapman, 79 id. portant factor and the plaintiff will 574. not be fully compensated unless he receive, not only the value of his property, but receive it, as nearly as may be, as of the date of his loss. Hence it is that the jury may allow additional damages in the nature of interest for the lapse of time. It is never interest as such, nor as a matter of right, but compensation for the delay, of which the rate of interest affords the fair legal measure."

1 Pittsburgh, etc. Ry. Co. v. Swinney, 97 Ind. 586.

2 Lawrence R. Co. v. Cobb, 35 Ohio St. 94; Duryee v. Mayor, 96 N. Y. 477; Central R. Co. v. Sears, 66 Ga. 499 (negligent killing of husband; time elapsed between death and trial considered by jury).

3 Western & A. R. Co. v. Young, 81

4 De Steiger v. Hannibal, etc. R. Co., 73 Mo. 33.

5 Denver, etc. Ry. Co. v. Conway, 8 Colo. 1.

6 Western & A. R. Co. v. McCauley, 68 Ga. 818.

7 Atchison, etc. R. Co. v. Gabbert, 34 Kan. 132.

8 Toledo, etc. Ry. Co. v. Johnston, 74 Ill. 83.

9 Varco v. Chicago, etc. Ry. Co., 30 Minn. 18.

10 St. L. etc. Ry. Co. v. Briggs, 50 Ark. 169.

11 Alabama, etc. R. Co. v. McAlpine, 75 Ala. 113; Georgia P. R. Co. v. Fullerton, 79 id. 298.

12 Chapman v. Chicago, etc. Ry. Co., 26 Wis. 295.

13 Brentner v. Chicago, etc. Ry. Co., 68 Iowa, 530.

only liable for the value without interest; but if he has derived a private advantage out of the property he will be liable for interest.1

In actions for damages caused by collision, interest is allowed on the cost of repairs and rental value while the vessel is undergoing repairs. It is allowed on all pecuniary elements of damage resulting from torts, consisting of moneys, property or labor, the value of which is reasonably certain.3 The rate of interest allowable in an action of tort is governed by the statute in force when the verdict is rendered and the law of the forum.5

SECTION 6.

THE LAW OF WHAT PLACE AND TIME GOVERNS.

§ 356. Importance of subject. As interest is generally regulated by statutes, and these are not the same in all jurisdictions and fluctuate more or less in each, it is of great practical importance that definite rules or principles should exist for determining the force and effect of these laws, and by which of them any contract or liability is to be governed. Owing to the wide domain of commerce, international and interstate, questions of interest arising under statutory regulations and restrictions are not of local concern. They arise upon every form of indebtedness incident to that commerce; and often between parties widely separated not only by distance but by national and state lines, each performing his part of

1 Marshall v. Schricker, 63 Mo. 308; Dawes v. Winship, 5 Pick. 97, note; Thompson v. Stewart, 3 Conn. 171; Rootes v. Stone, 2 Leigh, 650; Ricketson v. Wright, 3 Sumner, 335; Short v. Skipwith, 1 Brock. 103.

2 Straker v. Hartland, 2 H. & M. 570; The Mary J. Vaughan, 2 Bene. 47; Mailler v. Express Propeller Line, 61 N. Y. 312; Warrall v. Munn, 38 id. 151; Whitehall T. Co. v. New Jersey S. Co., 51 id. 639.

But where both vessels are at fault interest on the amount awarded is chargeable only from the date of the decree. The Manitoba, 122 U. S. 97.

If strippings are rescued from the offending ship and the owners realize large sums therefrom the court will exercise its discretion in allowing interest thereon. The Scotland, 118 U. S. 507.

3 Mailler v. Express Prop. Line, 61 N. Y. 312; Jay v. Almy, 1 Woodb. & M. 262; Remke v. Clinton, 2 Utah, 230; Grosvenor v. Ellis, 44 Mich. 452; Snow v. Nowlin, 43 Mich. 383.

4 Salter v. Utica, etc. R. Co., 86 N. Y. 401, disapproving Ewing v. Neversink Steamboat Co., 23 Hun, 578.

5 Bischoffsheim v. Baltzer, 21 Fed. Rep. 531.

the transaction at home, or in different jurisdictions and under [631] the influence of dissimilar laws. These transactions involve expenditures, independent or subsidiary contracts, and the performance of them in places having no common rate of interest.

2

§ 357. General rule as to contracts. The general rule is that the contract in respect to its construction and force, in other words its meaning and validity, is governed by the law of the place where it is made and to be performed.' If valid there it is jure gentium, valid everywhere; and if void there is void everywhere. What is the place of contract is not always easy to determine; nor have the courts arrived at the same conclusion from the same or similar facts. The inquiry is made for two objects — one to ascertain the amount of interest which the creditor is entitled to receive on an agree ment for interest generally, specifying no rate; the other to determine whether the contract when it contains an agreement for a specific rate of interest, or on one which at its inception interest was taken, is usurious. It is a general rule that where the contract stipulates for interest it is payable agreeably to the law of the place where made, but if it is made with reference to the laws of another state or country, [632] and is to be performed there, the interest is to be calculated according to the law of the place where the contract is

1 Archer v. Dunn, 2 W. & S. 327; Ralph v. Brown, 3 id. 395; Findlay v. Hall, 12 Ohio St. 610.

2 Reiff v. Bakken, 36 Minn. 333; Matthews v. Paine, 47 Ark. 54; Pearsall v. Dwight, 2 Mass. 88; Willings V. Consequa, 1 Pet. C. C. 317; De Sobry v. De Laistre, 2 H. & J. 193; Trimby v. Vignier, 1 Bing. N. C. 151; Houghton v. Page, 2 N. H. 42; Dyer v. Hunt, 5 id. 401; Andrews v. Pond, 13 Pet. 65; Whiston v. Stodder, 8 Mart. 95; Bank of United States v. Donnally, 8 Pet. 361; Wilcox v. Hunt, 13 id. 378; French v. Hall, 9 N. H. 137; Andrews v. Creditors, 11 La. 464; Smead v. Mead, 3 Conn. 253; Medbury. Hopkins, id. 472; 2 Kent's Com. 457 et seq.; Story's Conf. L

§ 242; Andrews v. Herriot, 4 Cow. 510; Watson v. Orr, 3 Dev. L. 161; Chartres v. Cairnes, 4 Mart. (N. S.) 1; Courtois v. Carpenter, 1 Wash. C. C. 376; Brackett v. Norton, 4 Conn. 517; Palmer v. Yarrington, 1 Ohio St. 253; Harper v. Hampton, 1 H. & J. 453, 622; Warrender v. Warrender, 9 Bligh, 110.

3 Ibid.; United States v. La Jeune Eugenie, 2 Mason, 409; Van Schaick v. Edwards, 2 Johns. Cas. 355; Robinson v. Bland, 2 Burr. 1077; Touro v. Cassin, 1 N. & McC. 173; Van Rumsdyk v. Kane, 1 Gall. 371; Alves v. Hodgson, 7 T. R. 241; McAllister v. Smith, 17 Ill. 328; Kanaga v. Taylor, 7 Ohio St. 134.

to be performed or the money paid. The place of performance is chiefly regarded; it locates the contract; the parties are presumed to have the law there in force in view in making their contract. Where no other place is specified for performance of a contract, it is to be performed where made.2 The law of that place determines its construction, obligation and place of payment.3

The place of contracting is prima facie where the instrument is dated; but if written, dated and signed in one place and delivered at another, the latter is the place of its consummation. A contract takes effect according to the law of the place where it is consummated, or where, if it is written,