ON REHEARING.
Per Curiam.Upon the rehearing counsel for appellees, who tried the case in the district court and made the argument at the original hearing, has submitted a brief pointing out the alleged errors of this court in reversing the judgment. The re-examination of the record, the reading of all the printed arguments filed by appellees, and .the exhaustive oral arguments, have not changed our views. We therefore adhere to our former conclusion for the reasons set forth in the opinion.
Had the present application been based solely upon alleged errors concerning the points previously decided, we should rest content by merely affirming our former ruling.
Since the original opinion was handed down, new counsel have entered an appearance for appellees, and while uniting with counsel originally, and still, in the case in asking for an affirmance of the judgment upon the same grounds previously urged, they have assigned in their printed briefs, and in oral argument have urged the same matters, that the judgment below should be affirmed, and base their contention upon a proposition which, for the first time, has been raised upon this rehearing. They now insist that by a fair construction of the contract there is imposed upon the defendants an unconditional liability, and that the only contingency relates to the time of payment; or, as expressed by them in other words: “If it may be seen from the pleadings that the time for payment may never happen upon which the liability is to attach, *392then the law says that the liability attaches after a reasonable time. That a reasonable time has elasped in this case is not and cannot be.well questioned.”
The appellants, upon the other hand, insist that the appellees have shifted their ground from that on which the case has previously been tried and determined both in the trial court and at the original hearing, and that a party may not thus change base.
From the language of counsel for appellees quoted in the original opinion it would seem clear that the case was tried upon the theory that the liability of the appellants was conditional, and that the contingency upon which the conditional liability became absolute happened before the suit was brought by reason of the receipt by defendants of the money or rather, its equivalent, due them under the contract. The position assumed now, for the first time, upon rehearing, while the former one is not abandoned, is that the liability is wholly unconditional, and that payment is postponed for a reasonable time after the performance of the work. It is strenuously insisted, however, that our interpretation of the quoted language of appellees ’ counsel does not fairly represent the position which they have maintained throughout the various hearings; but after a careful examination of the complaint and of the printed briefs, we are satisfied that our interpretation correctly defines it. As corroboration of this conclusion we cite the following language taken from the opinion of the district court which appellees, themselves, have called to our attention:
“ Under the theory upon which this cause is instituted and presented to the court there is but one question for the court to determine, viz: Have the defendants herein been paid by the Pacific Contract Company for the performance of the work mentioned ifi the contract ? If they have not they never will be. Of their own volition they instituted certain proceedings which culminated in the sale of certain property under execution under and by virtue of a judgment obtained by the defendants herein. At which said sale defendants *393took such steps as to forever extinguish and satisfy -said claim as against the Pacific Contract Company. * * *
“We think the satisfaction of defendants’ claim against the Pacific Contract Company was a payment thereof to all intents and purposes within the meaning of the contract.”
That the new ground assumed for the first time now is radically and essentially different, is too clear for argument. But, say counsel, the rule is, even if the case was tried upon an improper theory, and the trial court gave an erroneous reason for a right conclusion, nevertheless, this court should affirm the judgment, if it can he done consistently with the case as made. This doctrine, however, is inapplicable to the question under consideration, in the light of the facts.
Conceding that the rule against a change of base applies to the appellants, it is contended by appellees that it has no application to them, but that they may take as many inconsistent positions as they see fit in their endeavor to sustain the judgment. If we should agree with them upon this proposition (which we do not), the distinction attempted to be drawn would not be applicable to the case now before us, for upon the original hearing in this court the ground now assumed by the appellees was not in any way called to the attention of the court, and we proceeded to dispose of the controversy upon the questions that were then presented for our consideration, which resulted in a ruling adverse to them. They now, having filed a petition for rehearing, which we granted, sustain towards the judgment reviewed the same relation that the appellants did on the original hearing to the judgment of the district court. The burden is upon them to show error in our decision, and with respect to it they are as appellants, and they should not, under well established rules of practice, be permitted to set up, for the first time, in their petition for rehearing, a ground which was not theretofore raised in the progress of the case. The authorities are uniform to this effect, and some of them we cite: Weil v. Nevitt, 18 Colo. 10; Water Co. v. Irrigation Co., 24 Colo. 322; Water Co. v. Tenny, 24 Colo. 344; Elliott on Appellate Procedure, §§489, 490, *394491, et seq.; Noyes v. Brace et al., 9 So. Dak. 603 (70 N. W. Rep. 846); Woodard v. Baird, 43 Neb. 310 (61 N. W. Rep. 612) ; R. R. Co. v. Bills, 104 Ind. 13; Callaway v. Mellett, 44 N. E. Rep. 198: Davis v. Jacoby, 54 Minn. 144 (55 N. W. Rep. 908) ; Beck v. Thompson, 22 Nev. 419 (41 Pac. Rep. 1) ; Blough v. Parry, 144 Ind. 482 (43 N. E. Rep. 560); Funk v. Rentchler, 134 Ind. 75 (33 N. E. Rep. 898); Merriman v. Chicago, &c., Ry. Co., 66 Fed. Rep. 663.
For the foregoing reasons our former decision is adhered to.