SUPPLEMENTAL OPINION ON REHEARING
WILLIAMS, Justice.In its petition for rehearing filed herein, defendant in error requests this Court to re*946mand the cause to the lower court for new trial rather than reversing the decision of the trial court and rendering judgment in favor of plaintiffs in error. The basis of this request is that due to the trial court’s holding that verification by plaintiffs in error of their answer at time of trial was ineffectual, there was no necessity for defendant in error to present evidence relating to the question of whether Jim Lewis was acting as the agent of the Halls. If a new trial were granted, defendant in error contends that it would be afforded an opportunity to submit evidence relating to the agency of Lewis.
However, in view of the evidence submitted at trial, as stated in the body of our opinion herein, we do not believe that defendant in error is entitled to a new trial.
The evidence clearly establishes that defendant in error filed its lien herein as a contractor pursuant to the provisions of 42 O.S.1961, §§ 141, 142. It made no attempt to file a subcontractor’s lien and give the required notice to the Halls, pursuant to the provisions of 42 O.S.1961, § 143. Thus, for the defendant in error to prevail in an action to foreclose the lien as filed, it must establish either that the contract was made directly with the Halls or that such contract was entered into with Lewis, whose agency for the Halls can be established.
A Mr. Gross, an employee of the defendant in error, testified at trial that the agreement to furnish concrete was made with Lewis; that Lewis was known to him as a local contractor; that he (Gross) was not acquainted with the Halls; that Lewis directed the delivery of the concrete; and that the price of the concrete was billed to Lewis. The Halls testified that their contract for the re-erection of the barn, including the concrete portion thereof, was with Lewis and for a fixed sum. They produced can-celled checks to show they had made full payment of that sum to Lewis.
From this evidence, it is our opinion that the agreement to furnish concrete was entered into by defendant in error with Lewis in his capacity as a contractor.
For these reasons, the petition for rehearing is denied.
JACICSON, C. J., IRWIN, V. C. J., and DAVISON and BERRY, JJ., concur.BLACKBIRD and HODGES, JJ., dissent.