
    No. 13157.
    Jones et al. v. Jones Brothers.
    Decided June 10, 1913.
    Error to Circuit Court of Knox county.
    
      Mr. J. M. McGillivray; Messrs. Waight & Moore and Mr. W. Z. Davis, for plaintiff in error.
    
      Mr. Frank W. Owen and Mr. Ferdinand Jelke, Jr., for defendant in error.
   On rehearing.

Judgment modified as shown in journal entry.

The application of plaintiff in error for a rehearing herein having heretofore been allowed, this cause came on again to be heard upon the transcript of the record of the circuit court of Knox county, and was argued by counsel. On consideration whereof, it is ordered that the former entry herein, made March 28, 1913, be vacated and set aside, and this court finds that the circuit court erred in finding, that the clause, “no monetary allowance shall be made for any delays of whatever character” (which was included in the contract between the parties), should be eliminated, and in ordering that the cause be remanded to the court of common pleas for trial to a jury, to hear and determine the injury and loss to plaintiffs caused by reason of defendants not having the entire right of way over said proposed line at the time of beginning said work on or. about November 6, 1905, and thereafter, and to fix and assess any damages therefor according to law.

. It is, therefore, ordered and adjudged that the judgment of the circuit court be, and the same is hereby, modified by striking therefrom as much thereof as is included in the finding and orders above set forth, and in all other respects the said judgment of the circuit' court is hereby affirmed.

Shauck, C. J., Johnson, Donahue, Wana-, maker, Newman and Wilkin, JJ., concur.  