A's Vending, Inc. v. Texas Bank

ON MOTION FOR REHEARING

Plaintiff tenders a release and remittitur of the sum of $2,943.52 (the amount defendants claim plaintiff holds that belongs to them and should be offset against the note sued upon) and moves that the judgment be reformed to provide for a recovery of $23,427.33, and, as reformed, affirmed.

The note is in the principal sum of $22,907.48. It was made on April 26, 1972, and became due July 25, 1972. It provides for interest on the principal until maturity at 9.5% per annum and for interest thereafter at 10% per annum. Additionally, the note contains an agreement for 10% on principal and interest if suit is necessary for collection.

Plaintiff’s mathematical calculation for the reformed judgment it seeks allows defendants maximum benefit of the remitti-tur.

Plaintiff’s release and remittitur are permitted by Rule 439, Vernon’s Ann.Rules Civ.Proc.; and, to that extent, plaintiff’s motion for rehearing is granted. All other relief sought therein is denied.

Our former judgment of reversal and remand is set aside. We now order that the judgment of the trial court be reformed to provide that plaintiff shall recover of and from defendants, jointly and severally, the sum of $23,427.33. As reformed, the judgment is affirmed.

The costs in the trial court are taxed against appellants. The costs of this appeal are taxed against appellee. Rule 139, Vernon’s Ann.Rules Civ.Proc.

Reformed and affirmed.