ON REHEARING
Theodore S. Bloom, Portland, for the petition. Ervin L. Kincaid, Eugene, and William W. Bartle, Eugene, contra. Before McAllister, Chief Justice, and Perry, Sloan, O’Connell, Goodwin, Denecke and Holman, Justices. O’CONNELL, J.Plaintiff has filed a petition to modify our opinion reversing the judgment for defendant and ordering a new trial. Plaintiff contends that the evidence resolves all questions of fact in his favor and that, therefore, there is no necessity for a new trial. We agree.
Defendants argue that they have evidence to show that the sum of $4,000 paid to the plaintiff pursuant to certain escrow instructions was a partial payment on a total indebtedness of $7,000. However, from the *300evidence it is clear that the obligation to pay the sum of $7,000 secured by the assigned contract was in addition to the obligation to pay the sum of $4,000.
Defendants rested without putting in any evidence. They then moved for an order granting an involuntary nonsuit which was, in effect, a motion to dismiss since this was a suit in equity to foreclose an executory contract for the sale of land. Having adopted this procedure defendants risked having their case decided upon the evidence adduced by plaintiff. The evidence being sufficient to support plaintiff’s contention, defendants cannot now complain. Newman v. Stover, 187 Or 641, 213 P2d 137 (1950).
Our former opinion is, therefore, modified as follows : The decree is reversed with directions to enter judgment for plaintiff in the amount of $7,000 plus interest at 6% per annum from December 16, 1957, and for plaintiff’s costs and disbursements and for such other relief, if any, prayed for in plaintiff’s complaint and supported by evidence as the court shall find to be equitable.