On Petition for Rehearing.
PEE CURIAM.The defendant has filed a petition for rehearing. All of the points set forth in the petition for rehearing have been fully considered by the court except one. It is stated in the opinion that the plaintiffs rendered the sworn statements of their earnings from other employment during the period of time they were held out of the service of the defendant. This statement is not entirely accurate, but, under the facts of the case, the point, now raised for the first time, cannot avail the defendant. It is clear from the record that the plaintiffs were ready to furnish the statements and would have done so, if the defendant had refused to pay on that ground. The-defendant, however, did not refuse on that ground, but on the ground that they had failed to work when called upon. In the Fitzgerald case, the record is silent as to whether the statement was actually furnished or not. In the Hylton case, it appears that the statement was not furnished prior to the suit. In the Chambers case, it appears that before suit, but some time after Chambers had been finally dismissed from defendant’s service, in response to a letter from the de-' fendant, the plaintiff Chambers furnished a detailed statement of his earnings. There can be little doubt that if the defendant had requested statements from Hylton and Fitzgerald, they would have been forthcoming also. Having refused to pay upon a ground which is not tenable, the defendant cannot now escape payment because of failure to-comply with a condition which was not insisted upon at the time, and which could easily have been complied with, if it had been insisted upon. There is no evidence that at any time the defendant ever made any point of' the fact that the statements were not actually rendered as a. ground for its refusal to pay. The defendant when notifying the Labor-*25Board that the plaintiffs had failed to work when called on, made no mention of any failure of theirs to render statements. When they were called up for investigation and dismissed finally from the service, it was solely upon the ground that they had failed to work and not because of the failure to render statements. No such point was made in the trial below, nor is there any assignment of error based on the failure to render statements, nor was it argued in this court either orally or in the briefs. It would be unjust in the extreme to permit the defendant at this late day to escape payment by reason of the failure of the plaintiffs to render statements, when the statements could have been easily supplied, and no doubt would have been, if the defendant had ever indicated in the slightest degree that it was refusing payment on such ground.
The petition for rehearing is therefore denied.