Pickels v. Burnaman

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant, appellant, asks for a rehearing herein on the ground that-the court failed to give proper *643weight to the check for $109.50 in evidence, marked defendant’s exhibit 9, which was cashed by plaintiff and on the margin of which was written:

“Settlement in full to Dec. 1.”

This check and notation were considered by us before rendering our original opinion herein, but we did not think it of sufficient weight to overcome the finding of the trial, judge, who saw and heard the witnesses testify in favor of the plaintiff on that point.

It is not contended that plaintiff’s salary for the month of September was paid but defendant, both in his answer and his testimony, admits that it was not paid.

Defendant’s contention that plaintiff remitted his claim for salary for the month of September could not only be sustained by clear proof showing that plaintiff understood and intended to remit his claim for salary for that month.

Defendant further insists that a rehearing should he granted on the ground that plaintiff still holds his check for $75.00 for plaintiff’s salary for the month of December and that our judgment should direct cancellation or return of this check before defendant should be required to discharge this part of the judgment.

As we interpret the judgment, defendant is fully protected and cou’ld only be required to pay the amount of the judgment, less the amount of the check or to pay the amount of the judgment only after cancellation and surrender of the $75.00 cheek.

There is no reason, however, why the judgment should not he made more explicit on this point, but the doing of this does not, we think, constitute a change or modification of the judgment such as would cast the plaintiff, appellee for the costs of the appeal, and this modification can be made without granting a rehearing.

Our original decree herein is recast by adding thereto the following provision:

This judgment is subject to a credit of seventy-five dollars for defendant’s outstanding check in favor of plaintiff for that amount for plaintiff’s salary for the month of December; or said check must be returned to defendant before execution of this judgment. And as thus recast our judgment herein shall remain as originally rendered. Costs to be paid as provided in our original judgment herein. And subject to this modification or explanation of the judgment herein rendered a rehearing is refused.