ON PETITION EOR RE-HEARING.
Stiles, J.Counsel for respondent in this ease urges, upon a petition for re-hearing, that this court erred in assuming as a fact in its opinion heretofore filed, that at the time of making the contract for the grading of South Twelfth street the city of Seattle had reached its constitutional limit of indebtedness. The facts are these: The answer of the city set up the fact that the constitutional limit had been reached as one of its defenses, and to this defense the plaintiff interposed a demui-rer, which was sustained by the court; but upon the trial, notwithstanding this defense had been shut out, counsel for the city offered to prove the fact. Errors were assigned upon the action of the court in sustaining the demurrer, and in shutting out the proof.
In disposing of the case on appeal, this court found the action of the court below to be error, and had that fact been the only point in the case it would have gone back for re-trial. ■ But the main point upon which the case was decided was that the respondent had mistaken his remedy, by reason of the fact that his contract with the city was of such a character that it would not justify the charge of negligence against the city until it had been fully moved to levy and collect a local assessment to pay for the work. This ground alone, in our judgment, authorized the dismissal of the case. The other matters discussed were in the case, but were not absolutely necessary to its decision upon the merits. It cannot be questioned that, in ai'gument, we were justified in assuming the fact of the city’s *325having reached its debt limit to be true, since the demurrer of the plaintiff to the answer on that subject was an admission of the truth of the fact as alleged. We are entirely satisfied with the disposal of the other points.
The petition for re-hearing is denied.
Hoyt, Scott and Anders, JJ., concur.