The plaintiff and the defendant each move for a reargument. In addition the plaintiff asks an order for judgment for $5,662.05 with interest at six per cent from October 2, 1931, the date of the commencement of the action; that is, in effect that the judgment be reduced to such amount. The motion is in recognition of the holding of the opinion as to interest. *Page 475
Both motions are denied. The plaintiff abandons its claim made in its brief that the record shows that the surety company had notice; and it makes no claim that it can produce evidence of such notice.
Both parties proceed upon the theory that the reversal of the judgment results in a new trial. But not so. There must be a reference to the opinion to determine the result of a reversal of a judgment. Here there was a specific direction for further proceedings not inconsistent with the opinion. Upon the record, since the plaintiff no longer claims notice, a new trial should not be had. The record shows the amount of permissible recovery. The trial court on motion should amend the findings and conclusions and judgment. The judgment by the amendment should be reduced to the proper amount; and, if the plaintiff's computation of $5,662.05 is correct, it should be accepted. The original judgment will then stand as reduced. It is true that this court could have entered judgment, but doing so would have prevented an assertion by the plaintiff of its claim that the surety had notice as shown by the record or that notice could be proved. It is now with the trial court. The controversy will be finally settled upon the motion to amend. *Page 476