Mitchell v. Flandro , 95 Idaho 228 ( 1972 )

ON DENIAL OF PETITION FOR REHEARING

Defendant-appellants filed a Petition for Rehearing alleging the Court committed error in the following matters:

First, Assignments I and VI on the issue of allowance of interest, appellants cite Taylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971). However, the facts in that case are distinguishable. In the Taylor case the sum actually obtained was not established as of the time of the breach of the contract. However, in this case the contract price was due and owing as of the date of breach, December 1, 1965, and therefore as we stated in the Taylor case, “Interest should be allowed as a matter of law from the date the sum became due in cases where the amount claimed, even though not liquidated, is capable of mathematical computation.”

Secondly, Assignments II through V are based upon a mistaken view of the record that the court never granted the plaintiff’s amendment to the complaint alleging a second cause of action in contract. While this issue is moot in view of the original opinion entered herein, the trial court, in its memorandum decision, on page 125 of the transcript, specifically stated, “Plaintiff’s motion to amend by adding Count Two in contract will be granted. . . . ”

Assignment of error VII alleges that the trial court did not find whether Phase One of the contract had in fact been completed. However, the trial court in its memorandum opinion specifically found that plaintiff had completed all construction according to the plans, except for the offsets which involved only Phase Two. Therefore, Assignment VII has no merit.

The other assignments of error in the petition for rehearing are either a request for us to review the conclusions of our original opinion, or are matters raised for the first time on the petition for rehearing. We decline to consider these issues.

The petition for rehearing is denied.