(dissenting.) — I regret that I am unable to concur in the conclusions reached by my associates in the foregoing opinion. I concurred in the opinion first announced and adhere to it. In addition to this, I am unwilling to sanction the practice pursued in this case in this court. On the first hearing, it was substantially assumed that the findings of fact of the learned referee were correct, and the real contention was on questions of law. This court had a right then to assume that the facts were correctly found, and the opinion was predicated on that assumption.
*281On the rehearing, the findings of .the referee were attacked because the facts were not justified by the evidence, and in this the present opinion of my associates concurs. Having submitted the case on the theory that the findings of fact were correct, and having been defeated on the questions of law arising on those facts, I do not think the party ought to be permitted to call in question the theory upon which the case was first tried.