
    [No. 12028.
    Department One.
    September 21, 1915.]
    North Idaho Grain Company, Limited, Respondent, v. I. P. Callison, Appellant.
      
    
    Appeal—Decision—Bar—Matters Concluded. The decision of the supreme court that plaintiff, in an action to recover the price of a specific lot of hay sold to defendant, having adopted that theory entirely, cannot recover damages for breach of an executory sale of which there was no evidence to sustain a recovery, has no reference to the plaintiff’s right to bring a different action relating to the same transaction.
    Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered December 27, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.
    Reversed.
    
      John C. Hogan and A. E. Graham, for appellant.
    
      Bridges & Bruener and Glen Snider, for respondent.
    
      
      Reported in. 151 Pac. 775.
    
   On Petition eor Rehearing.

Per Curiam.

We are asked, in a petition for rehearing, to modify our decision, or to hold that the present action is no bar to an action for damages for the breach of an executory contract. The language particularly complained of is:

“Plaintiff might have adopted the theory of an executory sale and brought an action for damages. Having adopted the one theory, it cannot now claim the benefit of the other or take from the defendant the legal benefit flowing from its conduct.” 83 Wash. 212, 224, 145 Pac. 232.

We were passing upon the case made by the record. There was no testimony which would sustain a judgment for damages in the case at bar. The case proceeded entirely upon the theory of a sale of a specific lot of hay, then set apart for the buyer. We had no thought of another case involving the same transaction, and did not intend to hold that plaintiff could not bring another action upon another theory.

• Whether the action can be maintained will be passed upon when the case is before us and the testimony is reviewed.  