In the petition for a rehearing filed herein our attention is directed to a fact overlooked in the opinion. The judgment rendered includes the amount of $28.90, which sum as shown by the evidence was paid by plaintiff to his attorney as costs and not for legal services rendered. No *Page 7 claim is made for money expended as costs; therefore, under the pleadings, plaintiff's right to recovery is measured by the sum actually expended by him for attorneys' fees only.
This sum, as appears by the evidence, was $360. It follows that the inclusion of the $28.90 by plaintiff paid out as costs was unwarranted. It is not necessary, however, to reverse the judgment or order a new trial, as the error may be corrected by a modification of the judgment. (McConnell v. Corona City WaterCo., 149 Cal. 60, [85 P. 929].)
It is therefore ordered that the judgment be modified by deducting therefrom as of the date of its rendition the sum of $28.90, and as thus modified it is affirmed.
The petition for rehearing is denied.
Allen, P. J., and Taggart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 25, 1908.