Our former opinion, ante, p. 211, contains a correct statement of the facts. The defendant urges that-a rehearing should be granted for two reasons: (1) That a motion for a new trial was not filed in the district court within three days of the entry of the decree; (2) that plaintiff is not entitled to recover the $200 paid by him, but that defendant is entitled to retain the same as liquidated damages.
' The first point above urged is without merit. The bill *215of exceptions having been quashed, nothing remains for consideration except the pleadings and decree. In such a case a motion for a new trial is not a condition precedent to the right of review. Bannard v. Duncan, 65 Neb. 179; First Nat. Bank v. Button Mercantile Co., 77 Neb. 596.
Further consideration of the second point above urged leads us to the conclusion that we were in error in reversing the judgment of the district court, instead of merely modifying it. The contract set out in the pleadings does not provide for liquidated damages unless and until defendant has declared a forfeiture, and that declaration is not pleaded in the answer. Under the pleadings in this case, we do not think the district court could 'determine the question as to whether or not plaintiff is entitled to recover back the $200 he had previously paid upon the execution of the contract, nor should the district court have adjudged that defendant was entitled to retain said money. Defendant’s allegation that the money was to be retained as liquidated damages in case plaintiff failed to perform is a mere conclusion, not based upon the written contract which is set out at length in the petition. The suggestion that plaintiff may have been in possession of the property and that the rents and profits thereof were set off against the $200 is without merit, because the court found generally for defendant, and necessarily that she was in possession of the land. Plaintiff might not have been entitled to a specific performance, and yet may have a cause of action to recover back the $200. These questions the trial court could not determine upon the pleadings before it, nor can we do so.
It is therefore recommended that the motion' for rehearing be overruled, that the last subdivision of our former opinion and our judgment of reversal be vacated, that the judgment of the district court be modified so as not to purport to adjudicate defendant’s right to retain the $200 paid her by plaintiff, and, as thus modified, that it be affirmed. .
Calkins and Root, CC., concur.*216By the Court: For the reasons stated in the foregoing opinion, the motion for rehearing is overruled, the last subdivision of our former opinion and our judgment of reversal are vacated, the judgment of the district court is modified so as not to purport to adjudicate the defendant’s right to retain the $200 paid her by plaintiff, and, as thus modified, the judgment of the district court is affirmed.
Judgment accordingly.