
    No. 18,326.
    The Young Men’s Christian Association of Salina, Appellee, v. A. H. Ritter et al., Partners, etc., et al. (The United States Fidelity and Guaranty Company, Appellant).
    
    opinion on rehearing.
    Appeal from Saline district court; Dallas Grover, judge.
    Opinion on rehearing filed May 9, 1914.
    Re-' versed and remanded.
    (For original opinion of reversal see 90 Kan. 332, 133 Pac. 894.)
    
      Z. C. Millikin, of Salina, for the appellant.
    
      C. W. Burch, B. I. Litowich, and W. B. Crowther, all of Salina, for the appellee.
   Per Curiam:

In the former opinion in this case (The Y. M. C. A. v. Ritter, 90 Kan. 332, 133 Pac. 894) the judgment was reversed and the cause remanded with directions to render judgment for the appellant because of the failure of the Association, the owner of the building, to retain the required percentage of the estimates for work and labor furnished until notice to and consent of the surety company. A rehearing was granted on the sole question of whether or not the failure to retain the required1 percentage caused any loss to the appellant. We find it impossible to determine this from the state of the record. The trial1, court adopted plaintiff’s theory of the case, which was that the-contract and bond did not require the retention of 20 per cent of the estimates, and submitted the case to the jury upon that, theory. We construe the contract differently, and adhere to what, was said in the former opinion, but in view of the fact that the-case was tried upon the wrong theory, the judgment will be reversed and remanded with directions to find the amount of each estimate and the payments thereon, and the amount retained in the hands of the Association, and to find whether or not the surety company lost by reason of the failure to comply with this provision of the contract and bond. The appellant is only entitled to defend the action to the extent it has been injured, if any, by such failure.

None of the other questions discussed in the original briefs or in the briefs on rehearing is to be retried.  