(dissenting).
The author of the majority opinion on rehearing has obviously misconstrued the original opinion in this case, of which I was the author, as reflected by his statement that “The basis for this reversal of the Court of Appeal judgment was a concession made by Pittman in its brief * * * ”
In the original opinion it was observed that the stipulation in Article XI of the subcontract which forms the basis of the majority opinion, and which is the identical one found in not only the Miller subcontract but that of all of the other subcontracts of Pittman on the HANO Desire Project — that is, that of the amount due the subcontractors by Pittman for work done and accepted on the Project, Pittman would retain 10% thereof, this amount being payable within 10 days after Pittman received final payment from HANO — was for Pittman’s own protection in the event final payment to it would be withheld by HANO, for, under the law of this state existing when the subcontracts were executed by Pittman,1 it could have collected *643no interest whatsoever from HANO. Consequently, the provisions of Article XI of the subcontract having no reference whatsoever as to when interest would be due on the 10% retainages in the case, could not form the basis of the decision of the appellate court in the instant case. It was only because Section 35 of Article III of the Constitution of 1921 was amended by Act 621 of 1960, during the period of Pittman’s protracted litigation, with HANO, that Pittman was able to recover interest from the time therein.provided, i. e., from judicial demand, on .the entire 10% owed Pittman that HANO had retained; and. which amount concededly included the interest during this period on the $41,001.52 retained by Pittman from the amount, it admittedly owed Miller for work completed and accepted by HANO on January 1, 1955, and that had been due Miller from that date. See, 169 So.2d 122, certiorari denied by this court February 5, 1965. , s
It was in that same litigation between Pittman and HANO that the right of certain subcontractors to their pro rata share of the interest thus secured from HANO, based on the entire amounts respectively due them but retained by Pittman, was at issue, and the basis for the appellate court’s judgment resolving this question in favor of the subcontractors was that "Pittman * * * concedes that if''it ’is allowed interest from date of default'on' the amounts due it by HANO, the subcontractors. ¡zv'oitld be entitled to recover interest against it from the same date,” not from any provisions in Article XI of the subcontract agreements. (The emphasis has been supplied.)
Thus it may be seen that Pittman’s concession was not one of "willingness” that the subcontractors should receive interest' from judicial demand, but, instead, a'concession that they would "be entitled to recover” interest from Pittman “from the. same date” on the 10% Pittman had re-i tained covering • the various amounts due them. This is the concession that controlled in the judgment awarding all subcontractors-other than Miller interest from judicial demand on the entire 10% Pittman retained from the amount due the subcontractors.
It was Pittman’s own zeal to secure interest on the entire 10% HANO had retained of the amount it owed Pittman, and which included the various amounts Pittman had retained from the. total due the several subcontractors for work done by them on the Desire project, including that retained from the amount due Miller, that Pittman placed this judicial interpretation on its own contracts with these subcontractors.
It is thus obvious that all subcontractors of Pittman on the Desire Project, with the single exception of Miller, have been awarded interest from judicial demand on the entire 10% retainage by Pittman, irrespective of any claims against these subcontractors, whereas Miller is here being awarded interest from judicial demand only *645on the net amount of the 10% Pittman retained from the money owed Miller after claims against Miller were deducted. This distinction is not being made because this -is the law, but because, as pointed out in the majority on rehearing, "Pittman reaffirms in this court that it is willing to have interest run from judicial demand on the net amount of the district court judgment, and we shall render judgment accordingly.” . (The emphasis has been supplied.)
' Miller is thus being penalized not under any legal hypothesis, but merely because Pittman is peeved' with Miller because, as pointed out in the original opinion, while Pittman was willing for the other subcontractors "to be paid interest from judicial demand * * * in the event of its success in collecting interest on the amount owed it by HANO,” Pittman "zvas not zvilling to make the same concession” to Miller because of Miller’s attitude, as evidenced in particular "by his filing a separate suit and being unzsjilling to have his "claim adjudicated zvith the other subcontractors in Pittman’s usit against PIANO.” (The emphasis has been supplied.)
It is certainly illegal and illogical to allow Pittman to retain all of the interest piled up on the $40,001.52 owed Miller over a period of more than 10 years, and which HANO paid to Pittman on this' entire ; amount, and, at the same .time to deny Miller the share of this collected' interest that is allocable to the $41,001.52 Pittrhan admittedly owed him and'had withheld from him since January 1, 1955.
If it is legally and logically sound for Pittman to deduct from the 10% retainage due Miller the amount of claims against Miller arising out of work done on the Desire Project before figuring the amount of interest Pittman .should pay. Miller on this $41,001.52, then HANO should just as legally and logically have been permitted to deduct from the 10% retainage due Pittman the amount of claims against Pittman arising out of work on this same project, 'including th:e $41,001.52 due Miller, before tractors in Pittman’s suit against HANO.” should have paid Pittman on the 10% ’retainage due it.
To permit Pittman to thus enrich itself at the expense of Miller is not only most inequitable, but in direct contravention of the moral maxim “that no one ought to enrich himself at the expense of ánother.” Article 1965 of the Revised Civil Code. According to the majority opinion, Pittman will receive in excess of $20,000 of interest allocable to the $41,001.52 which .was not due Pittman since it had not earned it, but which Pittman was only holding for Miller for work done by him on the project that was completed and accepted, and, at the same time, Miller, during this entire period, is being compelled to pay interest on materials used by him in-’this project under a 'lien. This conclusion isfnót only illogical and unjust,"; but also uncoinseipnable;.
. Section 35 of Article III of the Constitution of 1921.