value of the property at any time between the conversion and verdict, without interest, together with cost of pursuit.80

Where the conversion has become complete, defendant cannot. escape liability, nor reduce the actual damages recoverable, by a tender back of the property.81

§ 1465. Use and occupation

In an action for the use and occupation of land, recovery can be had only for the value of the use and occupation of the land during the time plaintiff was entitled to the possession thereof.82

The fact that the case is one of occupation of land without color of title will not prevent plaintiff from recovering damages, simply because it is averred that the measure of damages is the value of the use and occupation of the premises during the period sued for, since the rental value while the owner is unlawfully kept out of possession is the proper measure of damages.83

80 First Nat. Bank v. Thompson, 137 P. 668, 41 Okl. 88; Funk v. Hendricks, 105 P. 352, 24 Okl. 837.

The measure of damages for conversion of personal property is the value of the property at time of conversion, with interest at 6 per cent. Dunn v. Modern Foundry & Machine Co., 51 Okl. 465, 151 P. 893; Comp. Laws 1909, $2910 (Rev. Laws 1910, § 2875).

Where property is wrongfully converted, and is, on the order of the court, placed in a receiver's hands, the measure of damages for loss or depreciation is the difference between the market value at the time of the taking and at the time the receiver comes into possession. Aylesbury Mercantile Co. v. Fitch, 99 P. 1089, 22 Okl. 475, 23 L. R. A. (N. S.) 573.

Conversion by mortgagee.-A mortgagor's measure of damages for conversion by the mortgagee is the market value at the time of the conversion, and the debts then existing. Continental Gin Co. v. De Bord, 123 P. 159, 34 Okl. 66.

Conversion of note.-The measure of damages for conversion of a note is its reasonable value, less partial payments or any set off for failure of consideration. Capps v. Vasey Bros., 101 P. 1043, 23 Okl. 554.

81 West Tulsa Belt Ry. Co. v. Bell, 54 Okl. 175, 153 P. 622.

82 Cook v. Melton (Okl.) 176 P. 205; Bigham v. Alexander, 54 Okl. 51, 153 P. 644.

Under Rev. Laws 1910, § 2873, the detriment caused by wrongful occupation of realty in cases not within sections 2874, 2880-2882, is the value of the use of the property, not exceeding six years next preceding commencement of proceeding to enforce right of damages, and the cost of recovering possession. Drennan v. Harris (Okl.) 161 P. 781.

83 Long-Bell Lumber Co. v. Martin, 66 P. 328, 11 Okl. 192.

§ 1466. Exemplary damages

"In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant." 84

To sustain a claim for exemplary damages, there must be not only gross negligence, but a willful, reckless disregard of the rights of a party injured.85

Where a carrier carries a passenger beyond his destination through reckless, careless, wanton, and willful neglect, but not otherwise, the passenger may recover exemplary damages in addition to actual damages.86

Where carrier's employés willfully refused to give passenger information requested as to change of cars, the passenger may recover exemplary damages."

87

A railroad corporation, without participating in such wanton acts. cannot be charged with exemplary damages for the illegal, wanton, and oppressive conduct of a conductor or brakeman of one of its trains toward a passenger.88

84 Rev. Laws 1910, § 2851.

Under Rev. Laws 1910, § 2851, exemplary damages may be recovered in addition to actual damages, where the competent evidence reasonably shows that the tort complained of was perpetrated by actual, willful fraud practiced to obtain ownership of personal property. Blasdel v. Gower (Okl.) 173 P. 644. In an action for the alleged fraudulent representations of defendant, inducing plaintiffs to buy certain hogs which at the time were known by defendant to be infected with cholera, it was not error to charge that if defendant, knowing the hogs to be diseased with cholera, falsely and willfully represented to plaintiffs that they were sound in health and good stock hogs, and plaintiff's had not examined them prior to the purchase, but relied upon such representations, which were false, and the hogs were infected with cholera, defendant was liable, in addition to the amount of actual damages, for a reasonable sum as exemplary damages, in view of Comp. Laws 1909, § 2887, pro

85 Atchison, T. & S. F. R. Co. v. Chamberlain, 46 P. 499, 4 Okl. 542. 86 St. Louis & S. F. R. Co. v. Lilly, 52 Okl. 727, 153 P. 810.

87 Lilly v. St. Louis & S. F. Ry. Co., 122 P. 502, 31 Okl. 521, 39 L. R. A. (N. S.) 663.

88 Moore v. Atchison, T. & S. F. Ry. Co., 110 P. 1059, 26 Okl. 682. Exemplary damages may not be recovered against a telegraph company for breach of a contract to promptly deliver messages. Western Union Telegraph Co. v. Reeves, 126 P. 216, 34 Okl. 468.

If a sheriff or other officer makes a wrongful seizure of goods under an order of attachment, but acts without fraud, malice, oppression, or other improper motive, he is not liable therefor in vindictive or exemplary damages on account of the malicious motives of the plaintiff in the writ.89

§ 1467. Interest and attorney's fees

"Any person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt.” *°

"In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud or malice, interest may be given in the discretion of the jury." "1

91

"Accepting payment of the whole principal, as such, waives all claim to interest." 92

Where plaintiff in his petition waives all interest in excess of the legal rate, and there is no plea of usury, interest will be allowed in accordance with such prayer.93

A decree for the payment of alimony to a wife raised an indebted

viding that in an action for breach of an obligation, not arising from contract, where defendant had been guilty of fraud, the jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing defendant. Hobbs v. Smith, 115 P. 347, 27 Okl. 830, 34 L. R. A. (N. S.) 697.

89 Dow v. Julien, 4 P. 1000, 32 Kan. 576.

Where an officer broke into plaintiff's house in her absence, and under attachment against her husband removed everything, including all furniture and household supplies, personal wearing apparel of plaintiff and family, all of plaintiff's separate property, and all the chickens on the place, an award of exemplary damages was proper. Sale v. Shipp, 58 Okl. 598, 160 P. 502. Findings following plaintiff's evidence held to convict defendant constable of such malicious conduct in making a levy as to justify the imposition of smart money. Townsend v. Seefeld, 102 Kan. 302, 169 r. 1157.

90 Rev. Laws 1910, § 2848.

91 Rev. Laws 1910, § 2849.

Interest is a part of the detriment caused by the conversion of personal property. Drumm-Flato Commission Co. v. Edmisson, 208 U. S. 534, 28 Sup. Ct. 367, 52 L. Ed. 606, affirming, 17 Okl. 344, 87 P. 311.

92 Rev. Laws 1910, § 2850.

93 Etna Building & Loan Ass'n v. Randall, 99 P. 655, 23 Okl. 45.

ness in her favor, as every installment fell due and was unpaid, upon which she was entitled to interest at 6 per cent. per annum.“ Where a guardian on final accounting is found liable to his ward, he is liable for interest at 6 per cent. per annum, and a judgment fixing interest at 10 per cent. per annum is unauthorized.95

In foreclosure proceeding, judgment for amount, with interest from default to date of judgment at 6 per cent., is erroneous, as such interest should have been allowed from beginning of interest period, with allowance to mortgagors of interest on amount paid as interest in advance, etc., with judgment for principal loan, less overpayment of interest.90

When attorney's fee is provided in a note, it is better practice to include such fee in judgment proper than to tax it as part of the costs.97

Where, by the terms of a chattel mortgage, it is impossible to determine with certainty whether the percentage named therein as a reasonable attorney's fee in case of foreclosure is to be computed on the proceeds of the sale of the mortgaged property or on the amount secured by the mortgage, the fee should be computed in the way most favorable to the debtor.98

94 Stanfield v. Stanfield (Okl.) 168 P. 912; Rev. Laws 1910, § 1008.

95 Abraham v. Harry (Okl.) 165 P. 1154.

96 Garland v. Union Trust Co., 63 Okl. 243, 165 P. 197.

97 Kerr v. McKinney (Okl.) 170 P. 685.

98 Keokuk Falls Imp. Co. v. Kingsland & Douglas Mfg. Co.. 47 P. 484, 5 Okl. 32.

Plaintiff, in action to foreclose a realty mortgage, held entitled to recover amount due on note, with amount of past-due interest coupon, with interest thereon, and also $200 attorney's fee as provided in mortgage, with interest thereon. Passumpsic Savings Bank v. Johnson, 64 Okl. 4, 165 P. 181.

(1400)

An action can be brought on a domestic judgment to recover a second judgment thereon, if the action is begun before the first judgment becomes dormant.""

It is no objection to a suit on a judgment that the time within. which an execution could be issued on the judgment has not expired.1

Unpaid installments of alimony not made a lien on defendant's property may be collected by suit, judgment, and execution against the property.2

Where a judgment for specific performance provides that on the vendor's failure to execute a warranty deed the decree shall operate as a conveyance, and no deed is executed, the vendee may sue for breach of warranty if the title proves defective.3

§ 1469. Who may sue

Personal representatives of the owner of a judgment which has become dormant by death of creditor may sue on the dormant judgment without having it revived; but such action must be commenced within time for revivor."

4

99 Treat v. Wilson, 70 P. 893, 65 Kan. 729.

1 Hummer v. Lamphear, 4 P. 865, 32 Kan. 439, 49 Am. Rep. 491.

Action may be maintained on judgment, though the judgment creditor has right to issue execution thereon. Davis v. Foley, 60 Okl. 87, 159 P. 646, L. R. A. 1917A, 187.

2 Cheever v. Kelly, 150 P. 529, 96 Kan. 269.

& Paris v. Golden, 153 P. 528, 96 Kan. 668, rehearing denied 154 P. 1123, 97 Kan. 174.

4 Jones v. Nye, 56 Okl. 578, 156 P. 332, L. R. A. 1916E, 735; Rev. Laws 1910, § 5294.

5 Jones v. Nye, 56 Okl. 578, 156 P. 332, L. R. A. 1916E, 735.

Under Code Civ. Proc. § 18, a right of action on a domestic judgment