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Opinion of the Court.

money, delivering property, or rendering services in pursuance of his contract, justice requires that he should indemnify the creditor for the wrong which he has done him.' Van Rensselaer v. Jewett, 2 N. Y. 135 [51 Am. Dec. 275); Lush v. Druse, 4 Wend. (N. Y.) 313; Van Rensselaer v. Jones, 2 Barb. (N. Y.) 643; Adams v. Bank, 36 N. Y. 255. These, and many other cases which might be cited from New York, were mainly based upon express contracts, in which money was to be paid, services rendered, or a duty to be performed at a fixed and certain timecases in which the default of the debtor at the fixed period was apparent; the amount of the recovery, and not the right to recover at all, being the sole question. This further distinction may be drawn from the New York cases, notwithstanding the damages are unliquidated and not capable of ascertainment by computation, still, if they can be determined by computation, together with a reference to well-established market values, then interest may be recovered. The reason given for this modification of the earlier rule is that in many cases market values are so well established and so easily obtained that it is easy for the debtor to obtain some proximate knowledge of how much he is to pay. This distinction was noted by Selden, J., in McMahon v. Railroad Co., 20 N. Y. 463. Under the law as held in New York at the present time, it is not far wide of the mark to say all the cases in which interest may be recovered by the creditor upon an unliquidated demand for damages arising upon a contract proceed upon the theory: First, that the damages are capable of ascertainment by calculation; second, that if not capable of being thus ascertained, they may be determined by reference to wellestablished market values, together with computation; or, third, that the debtor is in default in not performing some obligation devolving upon him, whereby the amount of his debt could be rendered certain or susceptible of being made so by calculation. These distinctions were referred to in McMahon v. Railroad Co., supra, and the right to recover interest upheld upon the third ground, namely, that

City of Chickasha v. Hollingsworth et al.

it was the duty of the defendant to have caused its engineer to furnish estimates of the work done, and that, had he done so, the amount of the claim would have been so ascertained as to carry interest. We have referred to some of the New York cases, for the reason that we think that they are in the advance upon the question of allowing interest upon unliquidated demands.

“The case at bar is not an action upon an express contract between the parties. Such a contract, it is true, existed; and, had plaintiff recovered under it, he would have been entitled to interest upon the several payments provided for therein from the dates at which they fell due; but for reasons not now necessary to be enumerated a recovery upon the contract has been abandoned, and plaintiff counts upon a quantum meruit for the performance of labor and services, precisely as he might have done had there been no contract. His services, and the material furnished by him, were uncertain as to amount, character, value, and time of payment, until fixed by a verdict or findings of the court. They were not of a character to have a fixed or ascertainable market value. They could not be ascertained by computation, either in extent or value. Defendant was not in default for not ascertaining that which, outside of the abandoned contract, he could not ascertain except by an accord or by verdict or its equivalent. In Bank v. Northam, 51 Cal. 387, this court held that interest could not be recovered upon an account for goods, wares, and merchandise sold and delivered. In Brady v. Wilcoxson, 44 Cal. 239, it was said: “The plaintiffs are not entitled to interest. Their claim was an uncertain and unliquidated demand. The amount due cannot be ascertained from the face of the contract, but is to be settled by process of law. On such demands, interest eo nomine cannot be allowed.' The case of Hamer v. Hathaway, 33 Cal. 117, cited by respondent, was an action of trover, in which the rule as to damages is quite different from that in cases like the one at bar. The rule in such cases was that the plaintiff could recover the value of the

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Opinion of the Court.

property, with legal interest from the time at which the value is estimated. Douglass v. Kraft, 9 Cal. 562. Section 3336 of our Civil Code has substantially continued the rule as it existed previously, with the addition that, under certain specified circumstances, no interest can be recovered. In McFadden v. Crawford, 39 Cal. 662, which was an action for work, labor, and services, this court allowed interest on the demand from the date of the filing of the complaint, reversing the action of the court below allowing interest from the rendition of the services. The rule thus enunciated finds some support in Sutherland on Damages, where it is said: 'After demand, or after commencement of suit, accounts generally bear interest. The commencement of suit is a formal demand. Accounts are generally made of items which represent money paid, goods sold and delivered, or services rendered, on request. They are severally demands on which interest may be claimed, though the price had not been fixed by agreement, and must be established by evidence." 1 Suth. Dam. 616. The same author adds that 'where, however, the account or demand is for particulars, the value or amount of which cannot be measured or ascertained by reference to market rates, and are intrinsically uncertain, or the creditor's demand of payment is excessive or vague, a different case is presented. The distinction mentioned is pointed out in many of the cases, and it is only by bearing it in mind that otherwise apparent conflict can be reconciled. We are not prepared to say, in general terms, that no interest in any case can be recovered in an action upon contract for an unliquidated demand. Mix v. Miller, 57 Cal. 356, decided since the adoption of the Code, and McFadden v. Crawford, supra, decided previously, attest the doctrine that in this state interest is allowable on such demand under some circumstances. These were cases in which the contract had been fully performed by the creditors, the fruits thereof accepted by the debtors without objection, and they were clearly in default, and in the latter case the only question was as to value. But where, as in

Comanche State Bank v. Watkins et al.

the case at bar, the amount of the services, their character and value, can only be established by evidence in court, or by an accord between the parties, and are not susceptible of ascertainment either by computation or by reference to market rates, or other known standard, we are of opinion plaintiff is not entitled to interest prior to verdict or judgment.”

We are therefore of the opinion that the judgment in this case should be modified and reduced to $288, with interest from the 10th day of July, 1913, the day of the judgment, until paid, and costs herein expended, and this cause is in all other things affirmed.

By the Court: It is so ordered.

COMANCHE STATE BANK v. WATKINS et al.

No. 5712. Opinion Filed March 14, 1916.

(156 Pac. 203.) 1. DEPOSITARIES—Money Deposited—Diversion from Purpose.

Money deposited in escrow for a certain, fixed, and definite pur pose cannot be applied to the use or benefit of either party to the escrow agreement until the objects for which same was deposited

have been fully discharged, unless by the consent of the parties. 2. SAME_Wrongful Diversion-Sufficiency of Evidence. The evi

dence in this case shows conclusively that the purpose for which
the money was deposited had not been discharged, and fails
to show any right in the holder of the same to apply the same to
its own use and benefit.
(Syllabus by Hooker, C.)
Error from District Court, Stephens County;

Frank M. Bailey, Judge.
Action by F. E. Watkins and another against the
Comanche State Bank. Judgment for plaintiffs, and de-
fendant brings error. Affirmed.

Opinion of the Court.

A. W. Reynolds and T. B. Reeder, for plaintiff in

error.

W. Y. Dilley and J. B. Wilkinson, for defendants in

error.

Opinion by HOOKER, C. On the 23d day of February, 1909, defendant in error F. E. Watkins entered into a certain contract with G. W. Vaught and his wife relative to the Sarah Hickman allotment in Stephens county, by the terms of which contract it was agreed that a deed from said Vaught and wife to Watkins was to be delivered to him when he placed in escrow $3,050 to pay for said land when the title was perfected in him. It is further provided in the contract that the said Watkins was to furnish the money to perfect the title, and was to be the judge of the amount of money to be used in perfecting said title, and that if any heirs were found to the land who had not deeded their interest to the said Vaught, the second party was to buy the interest of said heirs, and in paying therefor was to use as much of the $3,000 stated above as was necessary for that purpose. It was further provided that the cost of perfecting the title and procuring the deed from the heirs was to be paid from the $3,000, and, if any remained, that the same should go to G. W. Vaught and his wife. By agreement of the parties the $3,000 was deposited in the Comanche State Bank to be used for the purpose aforesaid. This money was deposited with said bank, and quite a large amount thereof, to wit, $2,395.04, was paid out by Watkins in perfecting the title to the land. It appears from the evidence introduced upon the trial of this cause that the title Vaught had to this property at the time he made this contract and

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