On petition for rehearing.
Scott, Justice.The opinion in this case was filed in this'court on May 10, 1915 (148 Pac. 369). Within due time the defendant in error filed his petition for a rehearing. In the opinion we correctly quoted the first’, third and fourth interrogatories’, but erroneously quoted the second interrogatory. As the record shows, the interrogatory submitted to the jury is as follows, viz.: “2. What is the amount due under the evidence from the defendant to the plaintiffs as a balance on account of the advances made to the defendant of $24,-000, and the interest thereon at 6% per annum after deducting the net returns 'from the sale of the defendant’s wool? Ahs. Nothing.” As erroneously quoted in the opinion (148 Pac. 370) the interrogatory reads: “2. What is the amount’due under the’evidence from’the plaintiffs as a *261balance on account of the advances made to the defendant of $24,000, and interest thereon at '6% per annum after deducting the net returns from the sale of defendant’s wool? Ans. Nothing.” It will be noticed that the interrogatory submitted to the jury and as erroneously quoted differ only in omitting the words “the defendant to” immediately preceding the words “the plaintiffs as a balance,” &c., and it is urged that we discussed the case upon the misquotation and that that constitutes a ground for granting a rehearing. Wé cannot assent to the contention that we decided the case upon the theory of a misquoted special finding of the jury. The writer’s attention was called to the misquotation by his associates when in consultation and it was understood that the correction should be made, but the writer overlooked it. In so far as counsel for the plaintiff in error are concerned, we are unable to conceive from the discussion of the case in the opinion filed how they could be misled or suppose the court rested its opinion upon a misquotation of that special-finding. Indeed, they understood the issues and argued the case from their standpoint and well and ably presented the case for their client. We did not consider the second interrogatory as erroneously quoted or otherwise, except as to its being in harmony with the general verdict, which, in view of the conflicting findings, we held should be set aside and a new trial granted. We think upon this ground alone, that is to say, upon the showing of the petitioner of the misquotation and the record in connection with the issues that it is an error subject to correction and that this court can make the correction, which is accordingly done. We regret that the error occurred and thank the able counsel for calling our attention to it and thus giving us the opportunity to correct the opinion.
It is urged that we overlooked the suggestion of counsel for defendant in error at the oral argument that there was no bill of exceptions to consider herein because the half of it contained in Volume II was not identified by the trial judge. The suggestion does not appear in the brief and the members of this court have no recollection of the matter *262being referred to by Mr. Fisher, the only attorney who appeared to orally argue the case on behalf of defendant in error. But even if a motion had been made to dismiss for the alleged defect it could not, upon this record, have been sustained. Volume II referred to apparently consists of a bundle of exhibits and original depositions which were admitted and read in evidence upon the trial, and the contents thereof as so read in the evidence is set forth in Volume I, duly indexed, wherein the evidence may be found, and in addition the index points out the page in Volume II, where the original deposition or exhibit may be found. At the end of Volume I appears the judge’s certificate and we are not advised of nor is any fatal defect here suggested or pointed out.
The balance of the petition and the brief refer to matters which were discussed, considered or deemed unnecessary to discuss in the opinion filed. The judgment of reversal was predicated on the conflict between the special findings and the conflict between some of them and the general verdict, and to which views as therein expressed we adhere.
Rehearing denied.
Potter, C. J., and Beard, J., concur.