(dissenting). I am unable to agree to tbe disposition of this case now made by tbe court. In tbe opinion heretofore delivered, we have treated tbe case as an action at law. In sucb a case there must be, as a basis for a judgment, a verdict of a jury, or, in tbe event a jury be waived by the parties, findings of fact by the court, unless there be an agreed statement of facts entered into by tbe parties in lieu of sucb findings. In tbe present case tbe court below made findings of fact, which this court held erroneous in an essential particular. Tbe logical and necessary result of such bolding is, in my opinion, tbe reversal of the judgment, and tbe remanding of tbe case to tbe court below for a new trial. I do not think, this court is justified in looking to admissions made during tbe progress of tbe trial, embodied in tbe bill of exceptions, as a basis upon which to order judgment, — especially where, as here, those admissions are contradicted by tbe findings of fact made by the court below. I am therefore of opinion that tbe judgment should be reversed, and the cause remanded to tbe court below for a new trial.