The following opinion on motion for rehearing was filed
Affirmed on condition.
Heard before Morrissey, C. J., Letton, Rose and Day, JJ., Blackledge and Redick, District Judges. Per Curiam.This case was before this court on a former occasion, our opinion being reported ante, p. 101. By our former opinion the judgment in favor of the plaintiff for $2,266.74 with interest, amounting in the aggregate to $3,220.13, was reversed for reasons therein stated, and the cause remanded for further proceedings. The plaintiff filed a motion for a rehearing, upon which a reargument *110was ordered by the court. In the motion-for a rehearing, the plaintiff states that, if the views of the court as expressed in the opinion are adhered to, to the effect that 'the defendant is entitled to credit for the value of new goods placed by him in the stock, and also for the expense of operating the store in making the sales, then he be permitted to file a remittitur of the total amount of the two items upon which the judgment of the lower court was reversed, and the judgment be then affirmed.
Upon a review of the record, we adhere to the conclusions reached in our former opinion, but in the state of the record .we see no objection to the filing of the remittitur as suggested in the brief for rehearing, and that the judgment should then be affirmed. It is established that the defendant sold goods from the stock during the time he had possession thereof, amounting to $3,246.50. It is also shown that new goods were purchased and put into the stock by the defendant to the amount of $912.76; that the cost of conducting the store business, together with a grain business (the latter business being wholly disconnected with the matter in dispute), was $1,000, making a total of $1,912.76. Our former opinion held that there was no evidence in the record that justified the trial court in finding that $479.76 was the amount of sales of new merchandise placed in the store by the defendant. We also held that there was nothing in the record to justify the apportionment of the expense of $1,000 equally between the store business and the grain business. This was the basis upon which the judgment was reversed. It is established that the total amount of sales from the stock during the period the defendant had possession thereof amounted to $3,246.50; that the total amount of new goods placed therein was $912.76, and the cost of conducting the store and grain business was $1,000. Deducting these two items, which the plaintiff is willing to confess, leaves a balance of $1,333.74, which with interest from December 1, 1914, to the date of the judgment, April 4, 1921, aggregate $1,925.81. If the plaintiff files within 20 days a remittitur of all in excess of $1,925.81, so that *111the judgment will stand as a judgment for this amount as of date April 4, 1921, the judgment of the district court will be affirmed; otherwise, it will stand reversed as stated in the former opinion.
Affirmed on condition.