*647The plaintiff moved for a rehearing. The following opinion was filed December 4, 1888:
Lyon, J.The plaintiff moves for a rehearing on the grounds (1) that in the account stated between the parties by this court, an item of $103.20, found by the referee to have been received by the defendant from the receipts of the store, was omitted from the accounting; and (2) that inasmuch as the question whether the "Wanpun stock became a portion of the mortgaged goods was first raised in this court, no costs should be allowed the defendant on a reversal of the judgment solely because that stock was not therein adjudged to be covered by the mortgage.
1. The item of $103.20 was properly omitted from the accounting. The amount did not come from the pocket of the plaintiff, but was received by the defendant from the proceeds of the mortgaged property. That is, it came out of the plaintiff’s security, and reduced the same just that amount. If the defendant redeems the mortgaged goods, the value of the goods which will then be returned to him will be that amount less than the same would have been had he not sold $103.20 worth of the goods and kept the money. If the defendant does not redeem, and the plaintiff forecloses his mortgage by a sale of the mortgaged goods, should the proceeds fall short of paying the mortgage debt, the deficiency would be increased the same amount, and it would be included in his recovery in an action for such deficiency. Hence, this item does not figure in this action of replevin, and counterclaim to redeem, and was properly omitted from the accounting.
2. It may bo true, as counsel for plaintiff contends, that there are no specific exceptions to the omission of the circuit court to include the "Waupun stock in the mortgaged goods, but there are exceptions to the failure of the circuit court to find that this stock and its proceeds had been so *648commingled by the plaintiff with the Dana stock and, its proceeds (which both parties seem to have conceded was the only stock covered by the mortgage) that the latter stock could not be separated from the Waupun stock for the purposes of an accounting. Upon this commingling of the two stocks, counsel for the defendant mainly rested their contention, in their argument of the appeal, that the basis upon which the account should be stated is to charge the plaintiff with the value of the mortgaged goods which came to his possession, and credit him with the loan. A settlement upon this basis would be more favorable to the defendant than is the account stated by this court. So we were thus called upon to determine whether there had been any commingling of good's as claimed, and we resolved the question in the negative, because, equitably, the Waupun stock was also included in the mortgage. Having so found on proper exception, our judgment necessarily disposed of that stock. !
Por the reasons above suggested, we conclude that the case was correctly decided in the first instance. The defendant is the prevailing party on the appeal, and is entitled to costs under the statute. Sec. 2949, R. S.
By the Oourt.— The motion for a rehearing is denied with ¡¡¡>25 costs.