Pray

Petitioners’ application for rehearing having been granted, and the opinion heretofore rendered having' been reported [58 F. (2d) 926, 927], we refer to that opinion for a statement of the facts.'

In petitioners’ application for rehearing, the applicability of the hypothetical 'question stated by the court in the former opinion is vigorously assailed. This hypothetical question is as follows; “Will a court of equity in a suit to foreclose a mechanic’s lien, asserted upon the ground that the contractor has completed the contract as far as possible for him to do so, and has been prevented from entire, completion. by the owner, not only entertain the defense of á breach of the contract by the contractor, biit also entertain a cross-complaint seeking damages for the breach of the contract by the contractor?”

The question is hardly apposite to the point involved on this application for a writ of mandamus, for the reason that we are considering the right of the petitioners to a jury.trial on the legal issues and not the right of the owner. Undoubtedly the owner by the consolidation of the two actions at its request, is in substantially the position as to its right to a jury trial as…