on petition eor rehearing.
Van Orsdel, Justice.This cause was heretofore decided by this court. (81 Pac., 307.) A petition for rehearing was filed, together with a *497brief in support thereof. Upon an examination of the petition and the brief of counsel, we find nothing presented that was not carefully considered by the court in preparing the former decision. It is contended that the case was decided in this court upon a different theory than that relied upon by either plaintiff or defendant in the trial court, and that defendant was thereby taken by surprise and not given an opportunity to be heard by counsel in this court upon the theory here adopted. It is sufficient to say that defendant was given full opportunity to be heard, and the case was ably and fully argued by counsel who then represented him in this court. The facts as disclosed by the record sustain the conclusions reached in our former opinion. As therein suggested, it may require additional evidence to assist the trial court in reaching a proper conclusion. If the facts are different from those disclosed by the present record, and defendant has proceeded upon a misapprehension of the law applicable to his case, the door is now open for him to protect his rights and to correct this error by supplementing the present record with any evidence he may have to offer upon a new trial. Rehearing denied.
Potter, C. J., and Beard, J., concur.