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On Petition for Rehearing •

May 1, 1930.

287 P. 174.

By the Court,

Coleman, J.:

Counsel for Leach and Mackie has presented a petition in which several points are urged as grounds for' a *139 rehearing, but we deem it necessary to consider but two of them.

It is said that the rule as to the measure of damage laid down does not apply to the facts presented. The lower court found from the evidence as follows: “That at all times from and after the time when the plaintiffs took possession of the crushing plant and rock quarry under their said contract with the defendant Armstrong, of May 14, 1923, it was impossible for the defendant M. P. Armstrong to procure rock of the kind and character required by said Contract No. 65 between the defendant Armstrong and the State of Nevada, and to deliver the same to the State of Nevada, Department of Highways, on cars at Vista Siding, Nevada, for a sum less than $1.46% per ton of crushed rock, except such rock as was delivered to defendant Armstrong by plaintiffs under the terms of the said contract or agreement of May 14, 1923.”

We think the evidence not only sustains this finding, but that no other finding could be made from the evidence. Under this finding of fact the rule stated controls.

Counsel seems to construe our opinion as holding that the Statute of 1919, c. 168, as amended (Stats. 1921, c. 129), does not apply to contracts pertaining to construction of highways.

We never intended so to hold. All that we intended to hold was that the statute in question does not amend section 17 of the highway act (Stats. 1917, c. 169, sec. 17) so as to produce the results contended for by the plaintiffs. Our opinion must be construed solely in the light of the situation presented and of the contentions made. After a careful consideration of the points urged in the petition, we are convinced that it is without merit.

It is ordered that the petition for a rehearing be denied, and that a remittitur issue instanter.

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