The plaintiffs in error in their petition for rehearing state that there are numerous misstatements of fact in the opinion that materially affect the conclusion of law thereon.
The first and second objections to the opinion should be considered together. They are:
"1. That the record does not disclose the amount of the engineer's estimate to be the sum of $82,042.77.
"2. That the pay of the defendant in error was not based on the estimates of the engineer, but on a separate contract between him and the plaintiffs in error."
We think the opinion clearly points out that the engineer's estimate did not show the amount of earnings between the contractor and the subcontractor for the reason that the state deals with the principal contractor only.
The third objection is to that portion of the opinion which states:
"The dispute and instruction arose over the price to be paid upon a portion of the gravel furnished."
An examination of the instructions shows *Page 264 that instruction No. 9 had reference to a contention between the parties relating to an item which had been charged against the plaintiff amounting to $387.12, on account of deducting 26 cents per cubic yard for gravel.
The court's instruction No. 10 is to be read and construed with instruction No. 9, and it is very clear that instruction No. 9 related solely to the controversy on the deduction made by the defendants on the gravel furnished by plaintiff.
There is no merit in plaintiff in error's objection No. 3.
The fourth objection to the opinion is that the plaintiffs in error had admitted that defendant in error had earned the sum of $82,042.77.
The defendants in their answer to the petition of the plaintiff state in part:
"A verified, itemized, true and correct statement of account of the labor and work performed and the materials furnished by the plaintiff, and the sums and amounts thereby earned by the plaintiff, and also of the sum and amounts paid to and charged against the plaintiff, being hereto attached, marked Exhibit No. 2 and by this reference made a part hereof." C.-M. 41.
The exhibit above referred to is to be found on pages 45-48, C.-M., and shows that there is credited to the plaintiff the sum of $82,042.77, and there is debited against said credit certain charges which constituted the issues in the court below.
At pages 145, 150, 191, 197, C.-M., are statements from the defendants to the plaintiff showing credits in favor of the plaintiff in the sum of $82,042.77.
The answer of the defendants below and the statements furnished the plaintiff by the defendants all show that the plaintiff was entitled to a credit of $82,042.77, and the controversy below was on the proposition whether or not certain charges made against the plaintiff's account were justified and legal.
A careful recheck of the record with the allegations set forth in plaintiff in error's petition for rehearing shows that such allegations are wholly unsupported by the record and that they are entirely without merit.