The legal questions involved in this case are the same as those in the case of City of Phoenix v. R.F. Kidd, ante, p. 123,94 P.2d 428, just decided.

For the reasons set forth in that case, it is ordered that the judgment be reversed and the case remanded with instructions to the trial court to permit the parties *Page 138 to amend their pleadings, and to take an accounting in accordance with the principles expressed in City of Phoenix v. Kidd,supra, and to render judgment accordingly.

ROSS, C.J., concurs.

McALISTER, J., dissents.