DISSENTING OPINION ON MOTION FOR REHEARING.
ELLISON, P. J.On the trial in the circuit court plaintiff’s counsel was asked directly whether he made any claim as temporary administrator. He answered that he did not and insisted that if he was not entitled to recover the five per cent as permanent administrator he was not entitled to anything. On it being suggested that it might be proper to allow him (qucmtum meruit) as temporary administrator, he disclaimed any right to it and refused to allow the trial court to include that issue with the others. Defendant’s counsel then said to him: “Then it is not necessary to go into it at all,’’ and he answered “No sir; not at all.’’ With that understanding “both parties rested their case.” He should not be allowed to change position here. It is not necessary to say whether he would have a right to *281present a claim for temporary services as a new and independent action.