ON REHEARING.
STOCKSLAGER, J.— Appellants, in their petition for a rehearing, say: “We are fully convinced that the voluminous record, and the confusing, conflicting, and in many instances unsatisfactory evidence presented by such record, has misled the court, and that the opinion .... is based on a state of facts which the record does not support, and that such opinion does neither directly nor indirectly refer to or consider other questions presented by the record, which we believe are of controlling importance. Further, the decision in this cause practically overrules the decision of this court in Anderson v. Mortgage Co., ante, p. 418, 69 Pac. 130.” As suggested, the record is a *769voluminous.one, containing two hundred and nineteen pages; but when it is stripped of the pleadings, which contain as exhibits the two mortgages, two trust deeds, with the other exhibits, findings of fact, conclusions of law, and the judgment, but little remains of the record. Counsel for appellants in the hearing assigned thirty errors, but in the argument they say: “The general question is, Was this suit brought upon a contract which was usurious at the commencement of this suit?” and argue the two questions (that is, Was the old contract usurious as to the $1,000 note?), practically admitting that the $800 note was usurious. They then urge upon the court that even if the old contracts were usurious, the parties purged them of any taint of usury by the new contract entered into at Montpelier, Idaho, on the 25th day of November, 1899. It is true, in the brief of appellants it is said: “It will be seen herefrom that appellants rely chiefly upon the insufficiency of the evi-< dence in this case, other enumerated errors being incidental; but, not waiving these, the appellants rely upon and reserve the right to argue orally all the other errors assigned in this brief as such, the same as though they had been folly discussed herein.” The statement of counsel for respondent in their brief is practically the same as that of counsel for appellants. They say: “The general question is, Was this suit brought upon a contract which was usurious at the commencement of this action?” No other question was urged upon the court, both' parties seemingly being content to have the single question of usury passed upon. We fully agree with counsel in their briefs that it was the controlling question in the case, and the opinion prepared by Chief ’Justice Quarles was in harmony with the views of his associates.
Counsel who now represent appellants urge that other important questions were involved and should have been passed upon by the court. We cannot agree with this contention, under the circumstances as they then existed and now exist in this¡ ease. Section 3818 of the Revised Statutes says: “The court, may reverse, affirm or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. *770Its judgment must he remitted to the court from which the a.ppeal was taken. The decisions of the court shall be given in writing; and in giving a decision, if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the ease presented upon such appeal and necessary to the final determination of the case.” The case was tried in the lower court on the theory of usury in all the contracts by respondents, and by the appellants on the theory that if there, was usury in the original contracts, or either of them, it was> purged by the contracts of November 25, 1895. It was argued and submitted in this court on the same theory. The opinion was written on that theory, and dealt with that question, as we view it, fully and fairly. We do not modify the opinion in the least, in the case of Anderson v. Mortgage Co., supra. Very different conditions exist, as may be observed by reading the two opinions. The record in the Anderson ease disclosed that Anderson bought the land covered by the mortgage, subject to the usurious contract, and agreed to pay the same to the mortgagee, and, in settling with the mortgagor, deducted all that could be claimed, including the usury, upon the usurious contracts, and then, in a suit in equity, asked the court to remove the cloud from his title by declaring the mortgage void by reason of the usurious clause. This the court refused to do.
Counsel for appellants submit numerous figures in an effort to convince us that no usury was contained in the contracts— especially the $1,000 note. We have carefully considered their figures, and the findings of the trial court, and also a table of figures submitted by respondents in their brief, purporting to show the amount of payments, and the interest on each of said notes at the time of such payments. The correctness of this computation has not been questioned by the appellants, either in the hearing in this court, or in the application for a rehearing; hence we conclude that they concede the computation to be correct. Our examination leads us to believe the figures, lo be correct, or practically so; and, if so, there was usury in both contracts, and it was not purged by the contract of November 25, 1899.
*771Inasmuch as the judgment will not be reversed and remanded for a new trial, we do not deem it necessary to pass upon each assignment of error separately. Nevertheless, we have considered them, and find no reversible error. A rehearing is therefore denied.
Sullivan, C. J., concurs. Ailshie, J., not being a member of the court at the time the cause was heard, took no part in this opinion on petition for rehearing.