Deeided June 24, 1913.
On Petition for Rehearing.
(132 Pac. 1164.)
Mr. Justice Eaktndelivered the opinion of the court on rehearing.
On the suggestion of defendant by his petition for rehearing we have re-examined the plaintiff’s Exhibits O, F and F2 as to the number of ties cut by plaintiff. This is the only evidence upon that issue from which it appears that the whole number of ties cut was 49,731, from which should be deducted 467 culls, shown by plaintiff’s Exhibit G, leaving 49,264 ties instead of '51,271 as found by the trial court. Therefore the *557amount due plaintiff is $2,459.59, and the former opinion should conform to this.
The judgment of the Circuit Court is modified accordingly.
Modified on Eehearing.
Decided September 23, 1913.
On Motion to Correct Mandate.
(135 Pac. 165.)
Mr. Justice Eakindelivered the opinion to correct mandate.
After the decision of this case and the issuance of the mandate, defendant appeared by petition and asked the court to recall and modify the mandate. It appears that after the perfecting of the appeal that plaintiff filed an undertaking, under Section 553, L. O. L., for the enforcement of the judgment notwithstanding the appeal, conditioned that, if the judgment be reversed or modified, plaintiff would make such restitution as the appellate court might direct. It further appears that on the, 17th day of November, 1911, in reliance upon said -undertaking and to prevent the levy of execution, defendant paid to plaintiff the amount of the judgment, $3,218.86, with interest and costs, total $3,385.18 and that this court has modified the judgment appealed from by reducing it to the sum of $2,459.59. Therefore the judgment against the defendant should be satisfied. in full and canceled, and defendant should have judgment of restitution against the plaintiff and the surety on his undertaking for the enforcement of the judgment notwithstanding the appeal, in the ijum of $759.27, with interest thereon from June 23, 1911.
The mandate is modified to conform herewith.
Mandate Modified on Motion.