
    [No. 17700.
    
      En Banc.
    
    December 6, 1923.]
    C. C. Culp et al., Respondents, v. Western Loan & Building Company, Appellant. 
      
    
    Appeal (370) — Review—Theory of Case. Where an action on contract to recover special damages, was tried on that theory, the appellant cannot, on appeal, change the theory of the trial and the measure of damages by reference to the rate of' interest not shown below.
    Appeal from a judgment of the superior court for Franklin county, Simpson, J., entered August 25,1922, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.
    Affirmed.
    
      M. L. Driscoll and B. B. Eorrigan, for appellant.
    
      Chas. W. Johnson, for respondents.
    
      
      Reported in 220 Pac. 766.
    
   On Rehearing.

Pemberton, J.

Upon rehearing appellant claims that the difference between the interest rate agreed to be paid under the breached contract and the interest rate it was necessary to pay to secure a new loan plus any special damages would be the rule of recovery in this case, and states that:

‘ ‘ Suppose the respondents obtained the new loan at an interest rate so much lower than the interest rate they were paying the appellant that the saving in the interest under the new loan more than offsets the amount of their special damages, surely the eourt will not hold that, notwithstanding the breach of the contract by appellant results in benefits to the respondents rather than damages, they can still recover the amount claimed as special damages.”

The rate of interest was not shown by respondents. In the- cross-examination of Althea M. Culp, one of the respondents, appellant asked the rate of interest charged. Objection was made to the question and sustained on the ground that it was improper cross-examination and not within the issues.

The complaint was drawn on the theory that the respondents were entitled to the special damages. The answer denies the allegations of the complaint.

At the close of all the testimony the appellant presented two motions, the first motion being as follows:

“Comes now the Western Loan & Building Company and moves the court to dismiss plaintiffs ’ action on the ground that the evidence shows that no contract was consummated between the Western Loan & Building Company and the plaintiffs, and that there was no liability on the part of the Western Loan & Building Company to make any loans, and their withdrawal of the money was within their rights.” .

This motion being denied, appellant offered the following motion:

“That the Western Loan & Building Company now requests the court to take from the consideration of the jury the item of $96.00, the item of $33.60, the item of $10.00 and the item of $50.00 set out in paragraph 3 of the amended complaint. We also ask the court to take from the consideration of the jury the item of $200 commission.”

This motion was denied.

This case was tried in the court below on the theory that the respondents were entitled to recover special damages. The sufficiency of the complaint was not questioned. The trial was had upon the issues as formed by the pleadings. The court properly sustained the objection to the cross-examination as to the rate of interest on the ground that it was improper cross-examination and not within the issues. Appellant at no time offered to prove the rate of interest in the second loan contract and cannot be permitted to change the theory of the trial now from that before the trial court. This case was tried on the presumption that the interest charged in both loan contracts was the same.

The judgment of the trial court is affirmed.

Main, C. J., Mitchell, Holcomb, TolmaN, Mackintosh, Bridges, and Parker, JJ., concur. 
      
      Note: For original opinion, see 124 Wash. 326, 214 Pac. 146.
     