OPINION DENYING A REHEARING.
In a motion for rehearing which, for the most part, reargues the same contentions made at the former hearing, counsel for the appellant surety company call attention again to certain decisions which were not mentioned in the former opinion. It is said that the surety company undertook to pay all claims for material which might become the basis for a lien; and that the action was upon an account containing many items, the correctness of all but three being admitted. The contested items *195covered cement sacks which were returned to the materialman, who paid the contractor the agreed price for them. In the motion it is insisted that by the judgment the appellant is compelled to pay for cement sacks which were not used in the construction of the building, and cannot be the subject of a lien.
In an attempt to briefly analyze their contention, counsel state a suppositive case, as follows:
“Suppose the Aitken Lumber Company had sold to the contractor a carload of lumber worth five thousand dollars and a horse worth one thousand one hundred forty-eight dollars and thirty-two cents ($1,-148.32) and had rendered a bill to the contractor for six thousand one hundred forty-eight dollars and thirty-two cents ($6,148.32). Admitting that the lumber was lienable and the Surety Company liable for thi^ item, is the horse also subject- to a lien because it is contained in the same account?’''
Counsel’s “horse” case perfectly illustrates their contention as we understood it from the briefs and oral argument; but in order to make it a “bay horse” case, or at all analogous, it should contain the further statement that before the action was brought against the surety company, the contractor returned the horse to the lumber company and was given credit on his account for $1,148.32, so that the balance of the account represented exactly the purchase price of the material actually used in the construction of the building.
For the reason that the exact situation was so obvious, it was not thought necessary in the former opinion to refer to two decisions, cited by appellant in the original brief and again relied upon in this motion, and which, it is urged, define the utmost limit to which courts will go in allowing liens for material employed in construction work but which does not constitute part of the permanent structure. One of the cases involved lumber used in making forms for a concrete structure, the lumber being largely consumed and rendered valueless by such use, and for that reason it was held to constitute material used in the construction of the building. (Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563.) In Supply Co. v. Surety Co., 103 Kan. 125, 175 Pac. 108, steel sheet piling, largely consumed in the construction of a bridge, was held to be material within the mechanics’ lien act, except as to so much of. the piling as was used again in other construction work. In both cases the question was whether or not the material was *196“used” in the sense of being substantially consumed in the work of construction. No question involved in those decisions is pertinent to the decision in the present case, and they were not mentioned in the former opinion, because in this case the lumber company made no claim for the cost of the cement sacks, and the judgment does not oblige the surety company to pay for them.
Rehearing denied.