On Petition for Rehearing.
[En Banc. February 28, 1914.]
Gose, J.In the opinion in this case, we said that the finding, that the respondent and his assignors were directed to quit work, was “not within the issues, nor is it supported by the preponderance of the testimony. There is no suggestion in the complaint that the respondent or his assignors were di*398rected to quit. On the other hand, the complaint is drawn upon the theory that they had performed their contract, that they had demanded deeds, and that the appellant’s title to the land was defective.” We also said:
“The appellant’s version that they quit voluntarily because they claimed that they were not being paid for all the clearing is corroborated by the silence of the complaint upon this question, by the letter of their counsel, and by all the attending circumstances.”
In the petition for rehearing, it is said that the opinion is in conflict with Gold Ridge Mining & Development Co. v. Rice, ante p. 384, 137 Pac. 1001, where we said:
“In respect to the contention that the counterclaim is not pleaded, it is sufficient to say that the evidence was admitted without objection, and, under the uniform decisions of this court, the issues became as broad as the evidence.”
We do not regard the cases as conflicting. We did not hold in this case that the issues had not been broadened by the evidence, but merely adverted to the silence of the complaint, and its general theory and scope, as circumstances tending to corroborate the theory of the appellant; that is, that the respondent and his assignors voluntarily quit work. The two cases, when carefully read, show no inconsistency.' After stating that the finding was not within the issues, we proceeded to discuss the evidence upon which the finding was based, and held that the respondent had failed to establish his discharge by a preponderance of the evidence.
It is also argued in the petition for rehearing that the letter set out in the opinion does not imply that the laborers voluntarily quit work. We think, when read in the light of the record, the letter is a circumstance tending to show that fact. Torn from its setting, it may not have that effect. It may even be a slight circumstance. Be this as it may, the writer of the opinion, after reading the abstract of the evidence, disregarding this letter, had no doubt that the respondent and his assignors voluntarily quit work because *399they were dissatisfied with the acreage they had been allowed. After reading the evidence of the respondent and his witnesses touching the character of the work they did, in the light of the evidence of the several disinterested witnesses of the appellant upon that question, the conclusion was forced upon the writer that the testimony of the former was not trustworthy.
The petition is denied.
All Concur.