The second trial of this case was reviewed in the opinion of this court filed February 1, 1917, published in 239 Fed. 785, — C. C. A. —. Each of the parties to the litigation moved for a rehearing, the motions were granted, and the case has been again heard.

A critical examination of the pleadings has convinced us that the questions discussed and decided in paragraphs numbered 2, 3, 4, and 5 in that opinion were not fairly at issue, and for that reason, and to the end that what was said may not constitute the law of the case, and thus be conclusive upon the trial court at the next trial, and not because the court is convinced that the views expressed were erroneous, those paragraphs of the opinion will be withdrawn, and the questions there considered left open for subsequent determination and the remainder of the opinion and the order for a reversal of the judgment and for a new trial will be affirmed.