
    [No. 27801.
    Department One.
    February 8, 1940.]
    The State of Washington, on the Relation of Martin Schuehle, Plaintiff, v. The Superior Court for King County, Donald A. McDonald, Judge, Respondent.
      
    
    
      Dupuis & Ferguson, for relator.
    
      A. C. Van Soelen, J. Ambler Newton, and John E. Sanders, for respondent.
    
      
      Reported in 98 P. (2d) 1073.
    
   Millard, J.

The relator brought an action in quantum meruit against the city of Seattle to recover the reasonable value of labor performed and materials furnished in construction of a bridge. The relator alleged substantial changes, not within the contemplation of the parties to the written contract under the terms of which relator was obligated to construct a bridge according to certain plans and specifications, were made by the city in the plans, which rendered the contract nugatory as a whole. The theory of the city, which was accepted by the trial court, was that the changes in the plans and specifications did not so radically and substantially alter the nature and cost of the work as to entitle relator to a recovery. The parties were permitted to introduce all the evidence they desired to sustain their respective positions. Judgment was entered dismissing the action. On appeal of relator, Schuehle, we reversed the judgment and remanded the cause with direction to the trial court to enter judgment in harmony with , our opinion. Schuehle v. Seattle, 199 Wash. 675, 92 P. (2d) 1109.

The remittitur was sent down to the superior court upon denial of the petition of the then respondent city of Seattle for rehearing. Relator thereafter submitted to the respondent superior court his proposed form of judgment, awarding recovery to relator of $21,984.86. The court, after hearing argument of counsel for the parties, refused to enter the proposed judgment, or any judgment, and reopened the cause for further evidence.

The cause is now before us on petition for a writ requiring respondent court to enter judgment in accordance with mandate of this court in Schuehle v. Seattle, 199 Wash. 675, 92 P. (2d) 1109, awarding relator $21,984.86, against the city of Seattle.

The superior court’s misinterpretation of our opinion is doubtless due to our failure to clearly recite that evidence sustaining the theory of Schuehle under which he is entitled to a recovery of $21,984.86 was introduced by then appellant Schuehle and amply supported his contention that the changes or deviations were not within the contemplation of the parties (Schuehle and the city of Seattle) to the written contract and were not covered by the contract.

In the light of the above, our mandate, in Schuehle v. Seattle, 199 Wash. 675, 92 P. (2d) 1109, “to enter judgment in consonance with the foregoing,” is'clear. It follows that the remittitur should be recalled and the trial court directed to enter judgment in the amount of $21,984.86 against the city of Seattle in favor of relator.

It is so ordered.

Robinson and Simpson, JJ., concur.

Main, J.

(concurring)—I concur in this opinion because, as I view it, the holding here made is required by the majority opinion when the case was here upon the merits (Schuehle v. Seattle, 199 Wash. 675, 92 P. (2d) 1109).

Blake, C. J., concurs with Main, J.  