On Petition for Rehearing.
Per Curiam.35. *36436. *363In his brief on petition for rehearing, counsel for appellee, while stating that it is apparent from the opinion that this case has received painstaking consideration, suggests that it seems that the opinion and judgment of this court proceed largely, if not entirely, on grounds not presented. So far as the examination of the testimony set out in the record is concerned, it may be admitted that our consideration has gone beyond the briefs, but our action in that particular was prompted, not by a purpose to search for grounds of reversal, but, because the intricate and perplexing questions of fact made a study of the transcript of the evidence necessary to an understanding of the facts. We were compelled to study the bill of exceptions, and, having done so, we were not at liberty to disregard what our eyes perceived as to the facts in their true *364relation to each other. Where resort to the record is necessary, the case will be determined by the record, and in such a case the court will not regard itself as governed by the conceptions of counsel on either side as to the nature of the controlling facts. Big Creek Stone Co. v. Seward (1896), 144 Ind. 205; Scott v. City of Laporte (1904), 162 Ind. 34; State, ex rel. v. Board, etc. (1906), 167 Ind. 276. As to our observations upon the ease generally, we may say, in the language of Big Creek Stone Co. v. Seward, supra, that “if the court were limited to the arguments and reasoning of counsel in its decision of cases, to the exclusion of its own observations, many eases would lead us far from what we understand to be the true object of the court.”
21. In the brief referred to, counsel call attention, among other matters, to what is claimed are inaccuracies in the court’s statement as to the height of the grade put in by the surety company, as to where work was done by it, as to the misleading effect of the prior work done by McNerney, of changes supposed to have been required by the railroad company on account thereof, and of the representations made while the work was in progress. Without going to the transcript of the evidence, which is very long and at times difficult to understand, we may admit, for the sake of the argument, that we have been under a misapprehension to the extent suggested by counsel, but an examination of the original opinion will show that we by no means rest our conclusion on the matters referred to, and we should not be understood as holding that the surety company prima facie stands charged with the consequences of knowledge at any particular time in the execution of the work. We cannot, however, escape the conclusion, apart from all- questions’ as to the details of the work upon the grade and the manner of doing it, that the surety company’s representative used the plans and profile to but little effect, if there did not come to him at sometime during the carry-*365mg out of the work a knowledge that it was not being executed according to the plans. Neither have we failed to consider the extent to which he might have been misled by the natural and the legal presumptions as to what was being required of the surety company, whether acting as a surety company or otherwise, nor the information which came to him as to the position of the railroad company and of its representatives. What we held was that, at some time during the period for which the court below allowed the reasonable value of the work, without attempting to trace the contract thereunder to the extent that under the circumstances it would be just to assume that it formed the underlying ground for the adjustment of the compensation, changes were made, which, considered as a composite, were so radical that they should not have been overlooked by the court, in view of the meager evidence offered by the surety company’s representative as to the extent of his knowledge. This 'holding we still adhere to. The contract was not rescinded, and it was not to be disregarded to the extent that it was in the admeasurement of the damages. We might have been radically wrong in our apprehension of the details of the work, and in our calculations concerning it, and even have failed to give due consideration to militating presumptions and evb dentiary circumstances, but it yet remains that there were bold facts, largely physical, not explained by the evidence or neutralized by any deduction therefrom, which forbade the conclusion, as. the evidence stands, that at some time during the period allowed for, the surety company did not, practically speaking, have knowledge. Our view is that the learned judge who made the special finding was led to find as he did concerning the surety company’s lack of knowledge through a failure to apply the principles of notice pointed out in the opinion, and therefore we need not now be at the pains in this opinion to review in detail the many matters concerning the evidence pointed out by appellee’s counsel, which we regard as inconclusive at the best. Whether ap*366pellee can satisfy the court or jury upon, another trial that the surety company’s representative did not have knowledge at some stage of the work is a question we need not now consider, for we apprehend that it is scarcely possible that, in view of our conclusions as stated, an explanation can be forthcoming which will justify an allowance to the full extent made upon the prior trial.
37. It is immaterial whether the surety company performed the work as the assignee of McNerney or as surety pursuant to notice by the railway company, for if said surety company is to be charged with the consequences of knowledge that changes had been made — and upon the present state of the evidence we so adjudge — it certainly cannot recover any greater quantum of damages than would have been awarded to it had it been a principal.
Beyond the matters before stated, the argument of appellee’s counsel for a rehearing is largely an argument of questions to which we gave careful consideration before, 'and nothing has been brought forward to lead us to the conclusion that a rehearing should be granted.
Petition for a rehearing overruled.