which should cause dismissal under the statute. § 7598, C. L. 1913. See Lambert v. Brown, 22 N. D. 107, 132 N. W. 781; Donovan v. Jordan, 25 N. D. 617, 142 N. W. 42; Miller Co. v. Minckler, 30 N. D. 360, 152 N. W. 664.
The evidence submitted was sufficient to sustain the special findings of the jury. We are of the opinion, however, that the trial court erred in permitting the plaintiff to recover interest upon the verdict returned by the jury. The issue of interest was not submitted to the jury. Previously the trial court had refused the plaintiff the right to recover the highest price for wheat existing between the time of the conversion and the time of the trial by reason of the delay in this action. Upon the record, it was improper for the trial court, as a matter of law, to award interest to the plaintiff. Section 7143, C. L. 1913; Johnson v. Nor. Pac. Ry. Co., 1 N. D. 354, 364, 48 N. W. 227; Ell v. Nor. Pac. Ry. Co., 1 N. D. 336, 353, 48 N. W. 222, 12 L. R. A. 97, 26 Am. St. Rep. 621; Seckerson v. Sinclair, 24 N. D. 625, 638, 140 N. W. 246. The plaintiff is not in a position to complain because the question of interest was not submitted to the jury as a question of fact. Accordingly, the order for judgment should permit recovery of the plaintiff in the sum of $490.60, with the interest thereon at 6 per cent. from the date of the verdict. It is ordered that judgment be entered accordingly, without costs to either party upon this appeal.
Grace, C. J. (specially concurring). I am of the opinion that the trial court did not err in overruling defendant’s motion to dismiss the action. In my opinion the defendant failed to show that the plaintiff took no action to bring the case to trial within the 5-year period specified in § 7598, C. L. 1913.
I am also of the opinion that the evidence was sufficient to sustain the special finding of the jury, and that the judgment as modified should be affirmed.
Robinson, J. (dissenting). This is an action for the conversion of wheat on September 30, 1909. On a special verdict the plaintiff recovered a judgment against defendant for the value of 55734 bushels of wheat at 88 cents a bushel, being $490.60. The interest and costs made it $891.18. The verdict is dated February 3, 1921.
