The appellant has filed a petition asking that the judgment reversing the case unconditionally be vacated, and that, instead thereof, the cause be remanded with directions to the court below to enter judgment that the plaintiff should be entitled to receive the whole of the Finnell Land Company stock, upon payment of the balance due upon the debt for the satisfaction of which it was taken by the bank, treating that balance as a still subsisting obligation. In the opinion rendered we held in effect that this was the only relief which the plaintiff could equitably demand. The defendant now consents that this relief be directed. The bill of exceptions expressly declares that it exhibits the substance of all the evidence given and offered upon the trial. The trial was careful and thorough. The evidence in proof of the alleged agreement that upon the payment by Goodman of the money demanded of him by the bank, it would transfer to him a proportionate part of the stock it had received from Finnell was vague, unsatisfactory, and clearly insufficient to prove such agreement, and it appears therefrom that the plaintiff produced all the evidence upon the subject which it could ever hope to obtain. There is no occasion for a new trial if the defendant is content with a judgment as above indicated. The judgment on unconditional reversal would require a new trial. That judgment is vacated and upon the consent of the defendant aforesaid the following is given as the judgment of this court: —
The judgment and order are reversed and the cause is remanded to the superior court with directions to enter judgment that if the plaintiff shall, within six months from the date hereof, pay to the defendant the sum of $158,893, with legal interest from October 26, 1900, after crediting all profits received on the stock after that date, the plaintiff shall thereupon receive from the defendant the forty-five hundred shares of stock of the Finnell Land Company which said defendant received from John Finnell; and that if such payment is not *Page 27 made within said period, then that the plaintiff take nothing by his action.
The defendant will recover the costs of appeal.