PETITION FOR REHEARING Action by E. Halvorson and others, doing business as the Halvorson Construction Company, against the *Page 679 Blue Mountain Prune Growers Cooperative, on an account stated for balance allegedly due under a building contract. A judgment in favor of the plaintiffs was entered by the Circuit Court, Umatilla County, R.J. Green, J., and the defendant appealed. The judgment for the plaintiffs was reversed by the Supreme Court, and the plaintiffs petitioned for a rehearing. The Supreme Court, Lusk, C.J. held that there was no room for implication of assent by defendant to correctness of statement of balance allegedly due under building contract rendered by plaintiffs based upon defendant's failure to object to that statement.
PETITION DENIED. 18. The respondents have petitioned for a rehearing upon six stated grounds as follows:
*Page 680"(1) The Court is in error in holding that (page 10 of the opinion) where the right to recover on a building contract depends upon the procurement of an archcitect's certificate, the builder, upon substantial performance of the contract, must sue upon the contract, and it is error to permit him to recover upon the common counts.
"(2) The Court is in error in holding that there was a practical construction placed upon the contract by the parties which required the architect's certificate for final payment.
"(3) The Court is in error in holding that there was no waiver of the contract provision of the procurement of the architect's certificate pleaded nor the procurement thereof pleaded or proven.
"(4) The Court is in error in holding that the evidence herein repels any idea that the owner assented to the accuracy of the contractor's final estimate or statement.
"(5) The Court is in error in holding that both parties understood that the owner would not be liable until the architect's certificate was issued.
"(6) The Court is in error in holding that the owner specifically expressed its lack of assent to the accuracy of the statement by its manager's insistence to the contractor that a check for the balance would be issued only on the basis of the architect's certificate."
Grounds (1) and (3) relate to statements in our former opinion which need not at this time be further considered because they were unnecessary to the decision of the case. The action was not upon the contract; on the contrary, the plaintiffs, ignoring the contract, sued upon an account stated. The contract entered into the case only because the defendant pleaded and relied upon it, and because the proof showed without contradiction that the parties understood the contract to mean that no liability of the defendant would arise until the architect's certificate should be issued. That being so, there was no room for an implication of assent by the defendant to the correctness of the statement rendered by the plaintiffs based upon the defendant's failure to object to that statement. That is the gist of the decision as set forth more fully in the next to the last paragraph of the opinion (214 P.2d 993). We have re-examined the case in the light of Grounds (2), (4), (5) and (6) of the petition for rehearing and find no adequate reason for changing our decision.
The discussion in the former opinion of questions not germane to the only issue in the case was brought about by argument on those questions in the briefs of counsel. It seems to be the fear of counsel for the plaintiffs that some of the statements made in the course of that discussion may have the effect of barring *Page 681 them from obtaining relief in some other type of proceeding for the enforcement of their claim. Nothing of this sort was intended, nor could any of these statements have that effect. We could, of course, decide only the case before us. Dicta do not bind either the Court or the parties, and whether anything said obiter in the former opinion shall require modification may be left to some future time when the questions shall arise upon the record.
The petition for rehearing is denied. *Page 682