On Petition for Rehearing.
(143 Pac. 1100.)
Mr. Justice Eakindelivered the opinion of the court.
4. The petition is a reargument of the questions decided in the opinion, and petitioner relies upon the case of O’Neil v. City of Portland, 59 Or. 84 (113 Pac. 655); but the facts of this case are not brought within the conditions of the O’Neil case. The charter here has made ample provision for raising funds to pay for the improvement, and it is the duty of the city to make the levy and assessment therefor and to collect the tax that is to provide the special fund. There was no attempt in this case by the city to raise a special fund. The failure of the contractor to perform his contract would have been a complete Idefense to any attempt by the city to collect a special levy, and therefore the city was not in default in providing the fund. The contractor was in no position to ask for payment until the *513completion of Ms contract. The city is simply a volunteer in attempting to pay the warrants out of the general fund. Its act in stopping the work and preventing its completion is suggested in this matter as ‘showing its liability in tort, but that assumes that the contractor could not proceed with his work. The Astoria charter evidently is an effort to protect the city against the liability held to exist in the case of the Portland charter. The remedy resorted to under the Portland charter is for failure of the city to perform matters required of it by the charter for the purpose of supplying the fund or for delay in so doing, which is the ground of the recovery in the O’Neil case, where the work was completed and received by the city and the city neglected to proceed to raise the fund. Here it is contended that the city ordered the contractor to quit the work because it was proving dangerous to certain property below the street, and therefore it was the city’s fault that the work was not completed, and that .the city was liable in damages for the work done; but that is assuming it was otherwise impossible to do the work safely, which we think is untenable. In order to relieve the contractor of the duty to carry out the provisions of the contract and to hold the city liable for the expenses of the work done, because it determined that the manner of doing the work was dangerous to adjoining property, it must be shown that it was impossible to do the work otherwise than in the manner being followed, which has not been shown.
The motion is denied.
Beversed. Behearing Denied.
Mr. Justice Bean and Mr. Justice McNary concur.