On Petition for Rehearing.
Denison, J.The defendant's in error move for a rehearing upon the ground that the decision of the court is upon a cause of action or a theory of the case not raised or suggested in the, court below.
We do not think the point is well taken. We have merely suggested relief not contemplated below. The facts shown in the complaint and in the proofs compel the conclusion that the funds provided by subscription were the property of the commissioners appointed under the statute. It is these facts that determine the relief to be granted. Drake v. Bank, 44 Colo. 49. We think, however, that the defendants in error are right in their claim that the Company and the Receiver have, as cestuis qui trustent, an interest in the note, and we do not wish to deprive them of the power of protecting that interest. *326Neither do we wish, nor did we intend by our former opinion to deprive the plaintiffs of the right to make the commissioners parties to this proceeding. They may do so and may amend their complaint for that purpose and . in other respects, if they desire, and the defendants in error may do likewise.
Decided June 2, A. D. 1919. Rehearing denied October 6, A. D. 1919.The defendants in error request us, if we do not grant the rehearing, to make certain directions as to what should be done by the court below. We cannot do this, because in order “to a complete determination of the controversy,” the commissioners must be brought in, and they have a right to be heard upon the questions which it is suggested we should determine now, including the question whether one dollar per share or the whole purchase price of the stock or how much should be deducted from the note. The injunction, required in our former opinion, should be until 'the amount justly due on the note is determined and until the further order of the court.
• The decree is reversed and the cause remanded for proceedings not inconsistent with these opinions, and, to the extent here indicated, the former opinion is modified.
On motion for rehearing; rehearing denied and opinion modified.