Conklin v. Caffall

The defendants, appellees, ask for a rehearing only on their complaint that the judge of the district court allowed the plaintiff interest on the $500 from February 10, 1936, until paid, instead of allowing the interest only to the date on which the defendants tendered the $500 — April 23, 1936. The judge of the district court, in the judgment rendered originally, allowed the interest from February 10 to April 23, 1936, but afterwards granted a rehearing and rendered judgment allowing the interest from *Page 318 February 10, 1936 until paid — meaning until the $500 and accrued interest should be paid. The reason for this change in the judgment was that the judge found, on a reconsideration of the case, that the defendants had not left the amount tendered on deposit in the bank, but had withdrawn it. In that respect the judgment is correct.

The plaintiff, appellant, in his petition for a rehearing, makes two complaints: First, he says that the court should have given him a judgment for five or six hundred dollars for the value of certain movables alleged to have been sold by the defendants from the property in contest. The plaintiff did not pray, in his petition, for a judgment for the price or value of any such movable articles, but alleged merely that the defendants should account to him for the price or value of such articles in the rendering of a statement of the net amount necessary to reimburse them for the amount which the property had cost them at the time when this suit was filed. We disposed of that issue when we said that the judge of the district court had found the account which the defendants rendered to be correct, and that the evidence supported his finding. The second complaint of the plaintiff and appellant is that the tender of $500 which the defendants made, to reimburse the plaintiff for the amount paid to Mrs. Hall, was not a valid tender, because it was coupled with the condition that it should be in full payment and satisfaction of all demands set forth in the plaintiff's petition. The only effect that this tender could have was to save costs for the defendants. We find that, in passing upon the application for a new *Page 319 trial or rehearing in this case, the judge of the district court granted a rehearing on the question relating to the costs. The record does not show how the question of costs was finally decided or whether it has ever been decided. The appeal which the plaintiff took was from the judgment on the other issues in the case.

With this explanation, both applications for a rehearing are denied.