On APPLICATION FOR REHEARING AND FOR AMENDMENT OF Decree.
DUFOUR, J.The rehearing is refused, but our previous decree is amended so as- to read as follows:
April 19th, 1905. Writ granted by Supreme Court, June 16, 1905,It is ordered, adjudged and decreed that there he j'udgment hi favor of plaintiff, the Ldiote Lumber Manufacturing Company, and against the defendant, Joseph 'Dugue, for the sum of Nine Hundred and Thirty-three 75-ioo Dollars ($933.75), with interest at the rate of five per cent, per annum from June 20th, 1900, until paid, provided that execution of this j'udgment shall not issue until the plaintiff shall have made a tender at their mill of the balance of the materials to be delivered under the contract, and after the said Dugue shall have failed at the time and place of said tender to accept and pay for said materials as a condition precedent to ■his right of requiring delivery to him.
It is further ordered that there be j'udgment in favor of the' plaintiff, the Lhote Lumber Manufacturing Company, and against the defendant, Samuel Levy, for the sum of One 'Hundred and' Six Dollars ($106.00), with interest at the rate of five per cent, per annum from June 20th, 1900, until paid, the defendant to pay costs.
It is further ordered that the demand in warranty of Levy against the Fidelity and Surety Company be rejected at his cost.
It is further ordered that, as amended, the judgment be affirmed,1 appellee to pay costs of appeal incurred by Joseph Dugue.