INTEREST ALLOWABLE FOR MONEY UNLAWFULLY RETAINED.

Court of Appeals for Hamilton County.

#### Lane & Bodley Co. v. Day.

Decided January 17, 1921.

*Interest*— Will *Not he Eliminated from a Judgment for Money Which Has Been Unlawfully Withheld.*

Although, not specifically mentioned in the statutes, interest may be allowed in rendering a judgment for the use of money wrongfully detained, in order to give full compensation for such use and detention.

*Simeon M. Johnson,*for plaintiff in error.

*John C. Healy,*for defendant in error.

*73Application for rehearing.

Hamilton, J.

The application for a rehearing and for modification of the judgment in this cause will be denied.

Counsel for plaintiff in error urges a modification of the judgment by the elimination-of interest in the amount of $553.90, and in support of his position urges that interest is purely a creature of statute, and, there being no provision in the statutes of Ohio authorizing the charging of interest in a case of this sort, that to that extent the judgment is erroneous'and should be modified.

While it has frequently béen stated that interest is purely of statutory origin and not the creature of the common law, an examination of the authorities reveals that whatever the origin of interest may have been, and though interest may not be allowed *eo*nomine, there are many cases wherein the courts have alowed interest by way of damages; or where money claimed has actually been used, or is improperly retained. A discussion of these questions and exceptions to the general rule, if such it may be called, is found in 15 Ruling Case Law, paragraph 4, *et seq.,*and 22 Cyc., 1474, *et seq.*

The case of *Cincinnati*v. *Whetstone,*47 Ohio St., 196, is authority for the proposition that interest may be allowed in cases not specifically one of those enumerated in the statutes. ■In that case, Whetstone was awarded compensation against the city on account of an improvement made under the change of an established grade, by which his property was damaged. The court held in the syllabus that he was entitled to interest on the amount of compensation awarded and that it was not error in the. court „to so charge the jury. The court further says in the opinion at page 202:

> ‘1 Indeed, it is evident from the general course of decision, that where one has lost his property, or the use of it, directly through the act of the defendant, the principle of adequate compensation will give interest as a necessary incident.”

It has been held in this state that interest may be allowed in eases not enumerated in the statutes, as shown by the following *74authorities: *Lawrence Ry.*v. *Cobb,*35 Ohio St., 94; *Baltimore & O. Ry. Co.*v. *Schultz,*43 Ohio St., 270, and *Hogg*v. *Zanesville Canal & Mfg. Co.,*5 Ohio, 410.

Under the authority of the ease above cited interest may be allowed in cases not specifically enumerated in the statutes. Indeed it may be said to be within reason that the statutes do but *limit*the rate of interest in specific cases, and, further, were enacted to define and prevent usury, as expressed in the titles to the acts of the interest statutes passed by the legislature.

Interest not being limited in all instances to thoses eases specifically enumerated in the statute, we are of opinion that the ease is within that line of cases holding that interest may be allowed in order to render full compensation for the -use and wrongful detention of money.

Plaintiff in error wrongfully refused on demand to pay the defendant in error the $1,000 in question. It retained and used the money for years, and has kept the defendant out of his money by years of litigation, and its obvious duty is to put bim in the position he would have occupied had not the money been taken and retained by it. In support of this proposition we cite the following cases: *Redfield,*Excr., v. *Ystalyfera Iron Co.,*110 U. S., 174, 176; *McShane & Rodgers*v. *Howard Bank,*73 Md., 135, 159; *Henderson Cotton Mfg. Co.*v. *Lowell Machine Shops,*86 Ky., 668; and *Parrott*v. *Knickerbocker Ice Co.,*46 N. Y., 361.

The amount was a sum certain and there could be no question, as to the amount of interest, if any, allowable.

We are not unmindful of the holding in the case of *Iron Railway Co.*v. *Lawrence Furnace Co.,*reported in 49 Ohio St., 102, where the court held no interest-could be allowed on a penalty enforced against a railroad for overcharge of freight, and used language in the opinion from which might be inferred that interest was purely statutory, but it will be noticed that the court fortified itsélf in its conclusion by saying “besides, no interest was claimed in the petition.”

Application for rehearing and modification of judgment denied.

Shohl and Cushing, JJ., concur.