Radich

The petition for rehearing advises that the stipulation of agreed facts and briefs thereon appearing on 69 pages of the printed transcript had been abandoned by the parties and that a minute order entered to that effect had been omitted from the transcript. The clerk .of the district court has forwarded to us a certified copy of the minute order. The briefs of none of the parties here advised us of this omission nor of the consequent unnecessary printing of 69 pages upon which, in part, .we based our opinion and decision of January 20, 1947. That opinion is ordered withdrawn.

This is an appeal from a judgment in favor of the United States for damage to one of its airplanes caused by a bulldozer tractor belonging to appellants Radich and Brown and operated by appellant Davies which, in the course of its operation in leveling land on a government airfield near Palm Springs, California, collided with the airplane.

The suit began in a complaint filed by otic Stratton, a contractor, against the United States to recover the full payment for work done upon the airfield, the United States having deducted as a setoff against the amount due under the Stratton contract the damage to the…