dissenting:
I cannot concur in certain portions of the conclusions reached by the majority. In my opinion some of them are inconsistent. In this respect I refer to the $11,355.21 item of interest which is allowed Mr. Bowles upon his $19,458.33 from February 14th, 1905, the date of the entry of judgment at the last trial, up to the present time. As I. understand the opinion it is that the sum of $19,458.53 was due him upon February 14th, 1905, for which reason the conclusion is that he is entitled to interest thereon at eight per cent, per annum from that date to the present time, which would amount to $11,355.21, the item above referred to. It will be observed that this suit was instituted May 31st, 1898, at which time the Skeltons were owing Mr. Bowles this same $19,458.53 and more, which the court says was due him upon February 14th, 1905. The original pleadings presented the question of an equitable tender to Mr. Bowles of all moneys due him secured by the deeds held *337by him as mortgages on or about February, 1898. Tbe opinion, as I understand it, sustains tliis plea and the cáse is disposed of accordingly, and upon account of his actions Mr. Bowles is not allowed interest upon his original debt from the date of this tender in February, 1898, until February 14th, 1905, the date of the entry of the second judgment.
I concur in the conclusion pertaining to the equitable tender, so far as its effect is enforced, but I am unable to comprehend under what line of reasoning, when for this reason he is prohibited from having interest from the date of the tender down to the date of the second judgment, that he should thereafter have interest from that date up to the present time. In other words, as I view it, if the plea and proof of the equitable tender are to be sustained and for this reason interest ceased from the date this tender was made, it should thus continue until Mr. Bowles was willing to accept and thereby gave the Skeltons an opporunity to pay him the actual amount which was his due; such time has never yet been reached. The first decree in his favor was reversed by this court as clearly erroneous in nearly every respect.—Dubois v. Bowles, 30 Colo. 44, 69 Pac. 1067. The second (entered November 14th, 1905) after including a final accounting, gave to Mr. Bowles a judgment for $32,779.69, declared it a lien upon the lands in question and ordered foreclosure accordingly. The majority opinion says that this judgment included $13,321.16 more than he was then entitled to. It is not claimed that at the time or after the rendition of this second judgment, Mr. Bowles was willing to or' would accept the amount this court, holds was ,then properly due him, but to the contrary, the record discloses that every inch of the ground is contested and every effort possible is made to sustain the validity of this erroneous judgment. ■
According to the majority opinion, at the time of the *338rendition of this second judgment, the only alternative left the Skeltons in order to have prevented interest from again starting upon the amount that was then actually owing Mr. Bowles, was to have paid to him an additional $13,321.16 more than this court says was then lawfully due him.- As I view it, this conclusion cannot be harmonized and cannot be supported by reason or authority. If Mr. Bowles was in the wrong when this suit was instituted (and I think he was) and for that reason was not entitled to have interest on his loan after the equitable tender, he was not thereafter entitled to interest upon it at any time until he was willing to accept the amount due him at the time the tender was made. If we are to now say that he is entitled to interest from February 14th, 1905, because a certain amount was then owing him, following the same reason, why should we not say that he was entitled to interest upon this same amount from the date the first judgment was entered or from the date of the commencement of the action, as practically this same amount was due him at each of these dates'? It appears to be that the allowance of this interest is entirely inconsistent with the theory upon which the case is disposed of.
It is true that the judgment now ordered is in some respects an affirmance of a part of the second judgment. It might properly be termed a modification of that judgment; but one of the contentions of the plaintiffs in error, and upon which they secure its reversal, is entirely in conflict with the theory upon which the trial court acted. The record discloses that he was requested to sustain this plea of an equitable tender but declined to do so. Under such circumstances, I cannot conceive what reason there is why interest should start upon his claim until the plaintiffs, who were right in this portion of the contention, have had an opportunity to act accordingly, and until that opportunity is given them how can it be-said *339that the judgment now ordered is. in fact a modification of the former one, especially since the trial court refused to recognize the plea which this court now says should have been sustained? But regardless of this, as I understand the rule pertaining to interest in ordinary suits, it is that a mere modification of the judgment does not suspend the running of interest pending the appeal, if such judgment be substantially affirmed.—Vol. 22 Cyc. 1561; 128 Cal. 572; Barnhart v. Edwards, 57 Pac. 1004; Beck-man v. Skaggs, 61 Calif. 362; Clark v. Dunnam, 46 Calif. 204; Dougherty v. Miller, 38 Calif. 548; Black v. Carrollton R. Co., 10 La. Ann. 33, 63 Am. Dec. 586; Wilson’s Appeal, 8 Pa. Cas. 579, 11 Atl. 670; Kneeland v. American L. & T. Co., 138 U. S. 509, 11 S. Ct. 426, 34 L. Ed. 1052.
Decided March 3, A. D. 1913. Rehearing denied June 2, A. D. 1913.If the rule above stated is correct, I cannot conceive how anyone can contend that the judgment of the trial court in this case is substantially affirmed when it includes $13,321.16 more than Mr. Bowles was entitled to, and is for nearly twice the amount that it should have been, and also when the reversal or modification according to the opinion is based upon the principal point contended for by the plaintiffs and in which this court now says they were right.
In Insurance Co. of North America v. Forcheimer & Co., 86 Ala. 541, 5 So. 870, it was held that where a new judgment is entered by the supreme court interest cannot be added as of the date of the former judgment.
I am also unable to agree with the majority pertaining to the damages allowed to the nursery. In my opinion the trial court misconceived the scope and effect of the evidence pertaining to this subject. I think the question of damages to the nursery should be remanded for a new trial to a jury and the amount of such damages deducted from Mr. Bowles’ claim before foreclosure is ordered.