On Motion for Rehearing. Complaint is made by appellee in motion for rehearing that this court failed to consider or discuss the cross-assignments of error in his brief, Nos. 1 to 18. These cross-assignments were, in effect, considered and overruled in our original opinion, by reason of our conclusion therein reached as to the law of this case. However, we have again reviewed said cross-assignments severally and they are now overruled.
We conclude that there is merit in appellees' assignments of errors Nos. 5 and 6, in his motion for rehearing. In rendering the case we found appellants, Weichsel and Hay, to be due $5,256.16, with interest at the rate of 10 per cent. from March 7, 1935. Of this amount, $950.56 was included as attorney's fee. Under the record, appellants paid no attorney's fee to the bank when the note in suit was taken up. Appellants' right of action being upon an implied contract, and not upon the note, their recovery is for the amount they paid, with legal interest thereon from the date the note was paid. Acers v. Curtis, 68 Tex. 423,4 S.W. 551, Hays v. Housewright (Tex. Civ. App.) 133 S.W. 922.
Accordingly, our original opinion should be corrected and judgment rendered in favor of appellants and against appellees in the sum of $4,305.60, with interest at 6 per cent. per annum from March 7, 1935.
With this modification, appellee's motion for rehearing is in all things overruled.
Overruled.