ON PETITION TOR REHEARING.
Potter, Citiee Justice.In the former opinion in this case (84 Pac., 900) we stated that it was not contended that the inclusion of the November items of plaintiff’s account in a partial statement rendered to the defendant Sanders and which was paid by her as set forth in the opinion estopped the plaintiff from claiming a lien for the amount actually due upon the account against the contractor, Davis. And it was further stated that it was not contended that an estoppel resulted from the delivery to Mrs Sanders by the contractor of his receipted bill which had been obtained in exchange for his check which had no value and was never paid, but payment of which upon its prompt presentation had been refused by the bank upon whom it was drawn. It is now insisted on a petition for rehearing by counsel for Mrs. Sanders that the question of estoppel was in the case, and that counsel did not intend to waive it. But the argument upon that subject is based almost entirely upon counsel’s understanding of the evidence. They say that on the trial both parties introduced evidence, without objection, bearing directly upon the question of estoppel, apparently forgetting that no part of the evidence is in the record before this court. We have only the plead*476ings, findings and judgment as the basis for our consideration of the case, and, as pointed out in the former opinion, the pleadings and findings do not establish an estoppel against the plaintiff. The answer of Mrs. Sanders alleged that on January 19, 1905, she demanded of plaintiff a statement of the balance due on account of materials used in her house, and was thereupon furnished with a statement of the November items (which had not been included in the receipted bill to Davis) and one other item, which she then paid. But it does not appear either by allegation of the answer, or in the findings, that she was misled in consequence of such partial statement to her injury, or that she was misled at all as to the actual facts and condition of the account. On the contrary it appears from the findings that six days prior thereto Mrs Sanders had been notified that there was $368.40 due the plaintiff from the contractor Davis for materials used in her house, for which the plaintiff claimed a lien on her property; and it is alleged in plaintiff's reply that promptly on the dishonor of the Davis check, the plaintiff informed Mrs. Sanders of such dishonor, and that the}'- would look to her property for payment of-the Davis account. It will hardly be contended that the circumstances of the check and receipted bill amounted to a payment of the account in fact; and as there is neither allegation nor finding that Mrs. Sanders was misled by reason of the receipted bill, as well as no allegation or finding that she paid anything to the contractor in consequence thereof, or at all, and absolutely nothing in this record to show or even indicate that she lost any remedy, or suffered any injury, by reason of any of the facts set out in the answer, or embraced in the findings, in connection with either receipted bill, there is no ground upon which to hold the plaintiff estopped from claiming or enforcing its lien. The answer did not, in our opinion, state sufficient facts to constitute an estoppel; and if it be conceded that it was unnecessary to plead it, and that the facts might have been shown which would amount to an estoppel *477under, the issues as framed by the pleadings, the record fails to disclose any such showing; and in the absence of the evidence, or of any finding of facts sufficient to constitute an •estoppel on account of the circumstances above mentioned, we are not at liberty to assume that estoppel was proven, or that the court failed to pass upon the evidence in that respect.
We cannot agree with counsel for defendant in error that the lien notice as shown by the findings was insufficient to support the lien. The findings in that respect are quoted in the former opinion and, in our opinion, show a sufficient notice. The court found that the notice claimed a lien “against the said frame house and the land upon which the said house stood,” which finding implies that the house and land were properly identified in the notice.
We perceive no reason for receding from our view that the findings clearly show that the November items were charged to the contractor upon his running account for materials furnished for the Sanders house, and that they were sold and delivered to the contractor for that purpose. There is nothing in the pleadings properly construed admitting a different state of facts, nor do we think that the findings insufficiently cover the issues tendered by the pleadings. We conceive it to be unnecessary to attempt to draw an inference from the pleadings as to the reason for Mrs. Sanders’ payment of the November items and one other included in the statement furnished her January 19, 1905. We do not intend to attribute any improper motive to her in that respect,-nor do we understand that there is any ground for so doing. It is left unexplained on the record here. It may be possible that at' the time she believed it competent for her to rely upon the receipted bill for all the other items, and that she might be obliged to pay the items not included therein; or she might have understood that she alone was responsible for the unincluded items, but the court, however, found differently as to that ■matter.
*478It is suggested that instead of directing a judgment upon the findings of fact in accordance with our views of the-law, the case should be remanded for new trial. If the record authorized such a course we would be willing enough to adopt the suggestion. But it does not. Counsel are mistaken in the assumption that plaintiff in error has asked merely for the reversal of the order overruling its motion for new trial. The petition in error prays for a reversal and vacation of the judgment as between the plaintiff and the defendant Sanders, and for judgment in its favor against Mrs. Sanders. The overruling of a motion for new trial is not assigned as error, nor is such a motion mentioned in the petition in error. The errors assigned are that the findings of fact are wholly insufficient to support the judgment in favor of defendant Sanders; that they do not support or warrant the conclusions of law numbered one and two; that said conclusions of law are erroneous as based upon the facts found; that the judgment in favor of defendant Sanders is not supported by the conclusions of law; that such judgment is contrary to law, as based upon the findings of fact; and that the facts found entitle the plaintiff to judgment ag'ainst said defendant. We are not permitted upon the record to ques-tion the findings -of fact; they seem to. us to cover the issues presented by the pleadings, and no ground, therefore, is perceived for remanding- the cause for a new trial.
Rehearing- will be denied.
Beard, J., and Scott, J., concur.