RESPONSE TO PETITION EOR RE-HEARING.
Opinion by
Lewis, C. J., Beatty, J., concurring.Every point made in the petition for re-hearing in this case was thoroughly considered in our first opinion, and no authorities are cited which in any way conflict with the conclusions of the Court in that opinion; and as we are fully satisfied that the law is correctly enunciated therein, we do not feel disposed to grant a re-hearing of the argument. The general rule of law unquestionably is, that what is once a tort cannot by any subsequent transaction be made the foundation of an implied assumpsit. There are exceptions to this rule, some of which we referred to in the original opinion, but this case does not come within any of the exceptions.
There is no doubt but the plaintiff has a right to a retrial of the issue upon the pleadings as they stand. The judgment was reversed upon an erroneous instruction given by the Court below, and we can see no reason why plaintiff should not go to trial on its present complaint, if counsel are satisfied that a contract or promise on the part of the defendants can be proven. The former judgment of this Court must stand, and a new trial is awarded.