The appellant, in a petition for rehearing, takes a statement in the opinion herein to the effect that the persons controlling both companies had "practically abandoned the enterprise of the defendant company, by mutual consent," and another statement that the defendant company had "practically abandoned the contract," and from these statements assumes that the opinion declares that the contract *Page 310 was abandoned by both parties thereto by mutual consent. Upon this basis, counsel argue that, under the doctrine stated inJoyce v. Shafer, 97 Cal. 335, [32 P. 320], when both parties to a contract abandon it, either party may recover the money paid on it. The remarks in the opinion do not have the effect assumed. Counsel fail to note the significance of the words used. The remarks were made in the course of the discussion of a different question. Lest others may also misunderstand it, we take this occasion to explain that the "enterprise" of the defendant, that is, its business of selling water to ocean steamers, was the thing which was referred to as "practically abandoned" by mutual consent. It had proven a failure and wisdom dictated its abandonment. But the opinion says only that the defendant company "had practically abandoned the contract," not that the plaintiff had done so, or that both companies had abandoned it. In the connection in which it occurs, this means only that defendant had abandoned all effort to perform it. The plaintiff company had never evinced any intention to do otherwise than stand upon the contract and enforce it. There was no abandonment of the contract by both parties such as is necessary for the application of the rule referred to in Joyce v. Shafer.
The petition for a rehearing is denied.
Beatty, C.J., dissented from the order denying a rehearing.