The petition for rehearing is denied. The rules or principles upon which the account was to be taken and stated were not irrevocably fixed and settled by the former interlocutory decree, and the decision of this court affirming the same. (Moss v.Odell, 134 Cal. 464.) That part of the *Page 339 interlocutory decree does not of itself purport to finally determine the rights of the parties, but was a mere direction to the referee to take proof and report as to certain facts. The report was to be made to the court. The matter was still infieri, and the court could at any time change the directions to the referee. In fact, however, the reference was abandoned, and by consent of the parties the evidence relating to the account was heard by the judge of the court below and the account was stated by him as part of the findings. This set the matter at large with respect to the interest to be allowed and the method of casting the account, and leaves it subject to review by this court on this appeal.
Nor is there anything in the opinion upon the former appeal purporting to declare the law upon these points, or to affirm this part of the interlocutory decree. On the contrary, that opinion expressly left open the questions relating to the rules and principles upon which the account should be settled and the credits adjusted, thus in effect holding that the decree then before the court was not final in these particulars, and this, whether correct or not in principle, has thus become the law of the case. We construe the finding that the note for $3,409 was not paid, taken in connection with the other findings, to mean that there never was any express application of the advances as a payment, and not that the note was not in fact satisfied by the moneys advanced.