Reed

— This case was first submitted in Department Two, and on January 31, 1891, the judgment and order denying a new trial were reversed, the opinion having been prepared by Commissioner Foote.- A hearing in Bank was afterwards ordered, and the cause was again argued and submitted. After a full, consideration *593 of the case, we are satisfied with the conclusion reached and the opinion filed in Department.

In their brief on rehearing, counsel for appellant suggest that the last clause of the said opinion would compel the court below to render judgment against appellant for the full amount of twenty-five per centum of the contract price, and to exclude any credits which he might lawfully have. We do not think that such is the meaning of the opinion; but in order to remove any doubt on the subject, we say, in addition, that if appellant has any lawful credits under section 1200 of the Code of Civil Procedure or otherwise, he is entitled to the same, to be deducted from said twenty-five per centum.

The judgment and order appealed from are reversed, and the cause remanded for a new trial. ,

Beatty, C. J., dissented.

The following is the opinion above referred to: —

— Eight actions…