The following opinion was filed May 2, 1918:
Eschweiler, J.(dissenting). I' must dissent from the order denying the motion for a rehearing because a re-exam*166ination of the record herein convinces me, as I now freely, though perhaps not cheerfully, admit that it was improper to allow interest, as was done in the decision, amounting to $1,619.36 on two separate, items involved in the lawsuit in Washington, D. 0., and for periods of time between February 28, 1914, when that action was started, and August 28, 1914, and October 6, 1916, respectively.
At the time of the making of the so-called Garfield contract in April, 1908, between defendant and the government the question was raised by the reclamation bureau as to whether, under the situation then existing, sums then withheld under the contract with Orman & Crook could ultimately be properly paid to the defendant as against the trustee in bankruptcy of those original contractors. At that time the question was examined and passed upon by an assistant attorney general of the United States whose finding was approved by -the secretary of the interior, to the effect that such payments might be properly made to the defendant as against the trustee in bankruptcy.
In November, 1913, the comptroller of the treasury rendered a decision holding just the opposite to the position taken in 1908. This change necessitated the -bringing of a lawsuit in Washington in which the trustee in bankruptcy was made a party in order to determine that very question. As a result of this lawsuit, which, it is conceded, was prose-, cuted with due diligence, the original position of the government in 1908 was upheld and the later position under which payment was delayed declared untenable.
Interest is allowed in this case by way of damages only. Under such a situation I think the period during which the question was necessarily litigated in Washington owing to this changed position of the government was a period during which interest on the sums there involved could not be properly charged against the defendant. It neither had the use of the money nor did it receive interest from the govern*167ment for such delay. Burr v. Comm. 212 Mass. 534, 537, 99 N. E. 328; 22 Cyc. 1558; 15 Ruling Case Law, 34; Bennell v. Kimball, 87 Mass. 356, 367; McDonald v. Loewen, 145 Mo. App. 49, 130 S. W. 52.
Again, I think it cannot be properly held that such a radical change of position by the government as to such payment was within the field of reasonable contemplation of the parties to this litigation at the time the contract between them was made. Eor a breach of contract such damages only are allowable as are within the field of reasonable contemplation. Lommen v. Danaher, 165 Wis. 15, 19, 161 N. W. 15; Lloyd Inv. Co. v. Ill. S. Co. 164 Wis. 282, 289, 160 N. W. 58; Nelson v. Goddard & Co. 162 Wis. 66, 71, 155 N. W. 943.
Kebwin, J., concurs in the foregoing dissent. Owen, J., took no part.