ON PETITION FOR REHEARING AND MODIFICATION OF MANDATE. Appellee's petition for rehearing and brief supporting the same reiterate the propositions heretofore made by it, but, upon careful consideration thereof, we conclude that the decision already reached is correct, and the petition is therefore denied.
Point 6 of such petition is as follows:
"If the court should decide that this petition [should] be denied, its mandate heretofore entered herein should be modified in that the judgment of the trial court is valid to the 5. extent of Four Hundred ($400.00) Dollars expended by appellee in satisfaction of a prior mortgage loan on the mortgaged premises."
The appellant has also filed a motion to modify the mandate in which he asks that the cause be not remanded for a new trial, but with direction to the trial court to forthwith enter judgment in his favor. It appears to this court that the facts surrounding the transaction *Page 406 in question were completely developed at the trial, and that, since there is no material conflict in the evidence, the ends of justice would better be served by a mandate which will end this litigation.
The appellee in its petition has made no suggestion regarding either interest or costs. It would be manifestly unjust to require the appellant to pay the costs, either below or 6. upon appeal. It is clear that appellee is entitled to recover the $400, and since appellants, at or before the trial, made no tender of that sum with interest, the appellee is also entitled to interest at the legal rate from the date the $400 was furnished to the date of the final judgment.
The mandate heretofore entered is, therefore, modified as follows:
The trial court is directed to set aside its judgment heretofore entered in this cause and to render judgment in favor of appellee against appellants in the sum of $400, together with interest at the rate of six per cent per annum from October 18, 1924, and no more, and for foreclosure of the mortgage in such sum only, and to tax all the costs to the appellee. All the costs of this appeal are taxed to the appellee.