On Motion for Rehearing.
The bonds given by the Fidelity & Deposit Company of Maryland to appellant S. Rotsky were ones of indemnity and covered only such losses as Rotsky might sustain as a result of the failure of Helm, the contractor, to perform his building contracts. The deposit made by Rotsky in court, referred to in our opinion on original hearing, was made after the buildings had been completed. The act of Rotsky in making that deposit, in connection with his stated purposes in so doing, constituted an admission that he then owed a balance on the contract prices of the, amount of the deposit. The amount of the deposit was $925, but as shown by the record, $25 was for extra work done by Helm and not included in his two building contracts, for the performance of which the deposit company executed the bonds. But $900 of the deposit was the amount admitted to be due for the work done under and by virtue of those -two contracts. As already determined by the Supreme Court in answer to certified questions and by this court upon original hearing, the loss of that deposit through the defalcation of the clerk of the district court, with whom the same was made, was Rotsky’s loss only, and since the contractor had not defaulted to the extent of that amount, the same could not be included in Rotsky’s recovery over against the deposit company.
The judgment of the trial court, therefore, in allowing a recovery in favor of Rot-sky over against the deposit company for the same sum as the Kelsay Lumber Com*621pany had recovered against him, was erroneous in so far as it included said sum of $900 with accrued interest thereon, and this court committed the same error in affirming the judgment so rendered by the trial court.
As shown by the judgment of the trial court, the amount of plaintiff’s claim against Rotsky, for which judgment was rendered, was the principal sum of $3,167.65, with interest added in the sum of $2,770.81. The date from which interest was so allowed is not stated in the judgment, but by calculation the amount which should be deducted from the aggregate sum so allowed of $5,938.-46 is $1,687.25, leaving a balance of $4,251.21, for which Rotsky should have a recovery over against the surety company. Accordingly, the surety company’s motion for rehearing is granted to the extent that the judgment of the trial court in favor of Rotsky over against the Fidelity & Deposit Company of Maryland is so reformed as to fix the amount of such recovery at the sum of $4,251.21, with interest thereon at the rate of 6 per cent, per an-num from July 29, 1927, the date of the judgment of the trial court. In all other respects the judgment of the trial court is affirmed. And except as abové shown, the motion for rehearing and for further findings by the Fidelity & Deposit Company of Maryland is overruled. The motion for rehearing by appellant S. Rotsky is likewise overruled. One-half of the costs of appeal are taxed against appellant Rotsky, and one-half against appellant Fidelity & Deposit Company of Maryland.