ON PETITION FOR REHEARING OF LEXINGTON INSURANCE COMPANY, ET AL.
PER CURIAM.In granting the petition for rehearing of the mortgagee, Arkansas Oak Flooring Company, and affirming the judgment of the district court in favor of that Company, we overlooked the objections of the insurance companies to the amount of that judgment.
The district court entered judgment in favor of Arkansas in accordance with the following finding of fact:
“The interest of Arkansas Oak Flooring Company in the proceeds of the policies issued by defendants is as follows:
“(a) Balance due on Note $11,467.20
“Interest on this balance to
11/1/57 1,157.39
“Interest at the rate of 5% per annum to run on the $11,467.20 from 11/1/57 until paid; and an additional 25% on the total of all of the above sums as Attorneys’ fees.
“(b) Building $ 5,000.00
With interest at the rate of 5% from 1/2/58 until paid.’’
The insurance companies question the allowance of attorney’s fees on the mortgage indebtedness. Recovery vel non of attorney’s fee by the mortgagee from the mortgagor is, of course, to be determined in accordance with the provisions of the note, the pertinent provision in this case being an agreement,
“Should it become necessary, at maturity, to place this note in the hands of an attorney at law for collection, adjustment, compromise or suit, to pay the fees of the Attorney employed for the purpose at the rate of 25% on the aggregate amount of said principal and interest.”
The record reveals that at the time of the fire the note was past due, but there is no proof that it had become necessary to place the note in the hands of an attorney for collection, adjustment, compromise or suit. At the time of the fire, therefore, no attorney’s fee had accrued to the mortgagee, and the district court erred in allowing an attorney’s fee against the insurance companies.
The district court further found that the other insurance companies, defendants in another action, had deposited $15,853.21 in the Registry of the Court which the court found to be the full amount of their liability under their policies, and that the Kinchens and Arkansas had accepted the tender of that amount and are entitled to credit on the present judgment in that amount, $15,-853.21. The appellant insurance companies call attention that the date of the deposit making the tender was May 16, 1958, and that the deposit was accepted by the mortgagee on December 3, 1959. We agree with the appellant insurance companies that interest on that amount of $15,853.21 should cease as of the date that it was tendered, May 16, 1958, rather than as of the date of entry of the present judgment, October 17, 1960.
The findings of the district court as to the amount of the judgment to be entered in favor of Arkansas are not challenged in any other respect. The petition for rehearing of Lexington Insurance Company, et al., is granted, the judgment in favor of Arkansas Oak Flooring Company is vacated, and the case remanded for entry of judgment in favor of Arkansas as heretofore calcu*305lated by the district court subject to the modifications directed in this opinion.