Kuhn v. McKay

Citation7 Wyo. 42,51 P. 205
PartiesKUHN v. MCKAY
Decision Date15 December 1897
CourtUnited States State Supreme Court of Wyoming

7 Wyo 42 at 65.

Original Opinion of July 7, 1897, Reported at: 7 Wyo. 42.

Rehearing denied.

Evans &amp Rogers, for plaintiff in error, on petition for rehearing.

Interest is not recoverable upon an unliquidated claim for damages. (Mansfield v. R. R. Co., 114 N.Y. 331; Clark v Dutton, 69 Ill. 521; Coburn v. Booming Co., 72 Mich. 134; Roberts v. Proir, 20 Ga. 561.)

Clark & Breckons, contra.

Although the point made on the petition for rehearing was waived because not discussed in the original brief of plaintiff in error, the position taken by counsel is not sound in its application to this case. Interest was necessary to complete indemnity. It was properly allowed. (1 Suth. on Damages, 174, 611, 612; 26 Wis. 295; 49 N.Y. 303; 33 Cal. 117.)

The defendant below knew the exact amount of stock he had contracted to deliver, and also the market value thereof.

POTTER, CHIEF JUSTICE. BRAMEL, Dist. J., concurs. The late Mr. Chief Justice Conaway also concurred.

OPINION

ON PETITION FOR REHEARING. OCTOBER TERM, 1897.

POTTER CHIEF JUSTICE.

The proposition presented on petition for rehearing is that it was error to allow interest upon the value of the shares of stock which constituted the damages which defendant in error was held in the former opinion to be entitled to recover. It is urged, that, as the amount of damages was unliquidated, interest is not recoverable.

It is, no doubt, the general rule that interest is not allowed on unliquidated damages. The reason for the rule is said to be that in such case the person liable does not know the amount of his indebtedness, and can therefore be in no fault for delaying payment. There is a clear recognized exception to the rule, however, well sustained by authority. Demands based upon market values, susceptible of easy proof, though unliquidated until the particular subject of the demand has been made certain by agreement or proof, are not so uncertain that no default can be predicated of any delay in making payment. (1 Sutherland on Damages, 610.) Therefore on such a demand interest is not denied.

The doctrine is stated in McMahon v. N. Y. & E. E. R. R. Co., 20 N.Y. 463, as follows: "The old common law rule, which required that a demand should be liquidated, or its amount in some way ascertained before interest could be allowed, has been modified by general consent, so far as to hold that if the amount is capable of being ascertained by mere computation, then it shall bear interest;" and the court referred to Van Rensselaer v. Jewett, 2 Comst. 135, in which case interest was allowed upon an unliquidated demand, the amount of which could be ascertained by computation, together with a reference to well-established market values.

The same principle is supported by the following cases, among others: Sullivan v. McMillan (Fla.), 37 Fla. 134, 19 So. 340; Richards v. Gas Company, 130 Pa. 37, 18 A 600; Swinnerton v. Land Co., 112 Cal. 375, 44 P. 719. We think this case comes clearly within the exception to the general rule. It is true that the evidence concerning the market value of the stock is meager, but so far as it goes, it stands...

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4 cases
  • Union Pacific R. R. Co. v. Pacific Market Co.
    • United States
    • Wyoming Supreme Court
    • August 26, 1921
    ...Ver. 212.) Interest upon unliquidated claims is allowable where demands are based upon market values and susceptible of easy proof. (Kuhn v. McKay, 7 Wyo. 42.) Such is case at bar. (M. K. & T. Co. v. Truskett, 104 F. 728; So. P. Co. v. Arnett, 126 F. 75.) It was established by the evidence ......
  • Storey & Fawcett v. Nampa & Meridian Irrigation District
    • United States
    • Idaho Supreme Court
    • February 12, 1920
    ...328, 134 P. 338; Idaho Gold Coin Min. & Mill. Co. v. Colorado Iron Works Co., 49 Colo. 66, 111 P. 553; Kuhn v. McKay, 7 Wyo. 42, 49 P. 473, 51 P. 205.) refusal to pay an engineer's estimate when due is such a violation of the contract as gives the other party a right to abandon it and sue o......
  • Rissler & McMurry Co. v. Atlantic Richfield Co.
    • United States
    • Wyoming Supreme Court
    • January 12, 1977
    ...190, 195 (Wyo.1976), reh. denied. The principle appears first to have been enunciated in the denial for rehearing in Kuhn v. McKay, 7 Wyo. 42, 65, 51 p. 205, 206 (1897), and has been applied in numerous cases as cited in the majority opinion.3 Chandler-Simpson, Inc. v. Gorrell, 464 P.2d 849......
  • Quinlan v. Jones
    • United States
    • Wyoming Supreme Court
    • June 4, 1921
    ...is it material that the amendment conforming the pleadings to the proof was not actually filed. (Kuhn v. McKay, 7 Wyo. 42, 57, 49 P. 473, 51 P. 205.) Counsel for appellant further contend that the court should have found the value of the property in controversy separate from the damages awa......

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