*39Rehearing denied- October 15, 1918.
On Motion roe Reheaeing.
(175 Pae. 445.)
Department 2.
Mr. Thomas Mannix and Mr. Grant B. BimicTc, for the petition:
Mr. J. Bean Butler and Mr. Joseph E. Hedges, contra.
PER CURIAM.6. In the former opinion by Mr. Justice Bean (174 Pac. 156), it was held to be error for the lower court to sustain defendant’s motion for nonsuit (against the plaintiff) and the case was reversed and remanded for new trial. The appellant filed a petition for rehearing in which he contends that this court should render him a judgment against the respondent for the amount of his claim. It appears from the record that under his contract the plaintiff was to receive ten cents for each lineal foot of pipe; that he sublet the contract at six cents per lineal foot, or a profit of four cents for each foot of pipe. His cause of action is to recover the amount of the difference between his original contract and the subcontract. Such fact appears upon the face of the record and is undisputed.
Appellant’s counsel has cited respectable authorities from other jurisdictions, sustaining his position,, but with one or two exceptions, where a nonsuit has been granted by the lower court and the case has been reversed in this court, it has been the practice to remand the case for a new trial. It appears upon the *40face of the record before this court that the appellant is now entitled to a judgment against the defendant for the difference between the original contract price and the price at which the contract was sublet, or four cents per lineal foot, yet under the issues made by the pleadings defendant might tender and produce at a second trial in the lower court testimony which might contradict the prima facie case made by plaintiff, and in the interests of justice and to give it such right, we are of the opinion that the case should be remanded.
Overruled.