delivered the opinion of the court.

Plaintiff’s counsel in a very able and interesting argument discusses many questions which are not before us. If the demurrer was properly sustained it is neither necessary nor proper for us to go further than to so declare. By Section 68, L. O. L., a demurrer is made the method of attacking a misjoinder of causes of action. The complaint contains a demand for relief based upon a breach of contract, and another upon assault and battery which is, of course, a tort. In Smith v. Day, 39 Or. 531, 537 (65 Pac. 1055), Mr. Justice Wolverton says:

“It is so well settled that an action on contract cannot be united with one arising ex delicto that it does not require a citation of authorities to support the proposition.”

*638The demurrer was properly sustained and the judgment is affirmed. Affirmed.

Rehearing denied October 3, 1917.

Petition for Rehearing.

(167 Pae. 272.)

On petition for rehearing. Rehearing denied.

Mr. McCants Stewart, for the petition.

Messrs. Bernstein & Cohen, contra.

Department 1.

delivered the opinion of the court.

Plaintiff urges a rehearing in this case because the opinion does not discuss the action of the trial court in striking out portions of the complaint before sustaining the demurrer. We have held that the demurrer was properly sustained and have affirmed the judgment. This constitutes a final disposition of the case and any comments which we might now make would be mere dicta and not of controlling force. Many interesting questions are discussed in the briefs which in a proper case will be considered by this court, but there is nothing in the record before us to justify a rehearing and it is therefore denied.

Rehearing Denied.