The opinion
PETITION FOB REHEARING.
(165 Pae. 1183.)
On petition for rehearing. Rehearing denied.
Mr. O. G. Boggs and Messrs, Beach, Simon S Nel son, for the petition.
Messrs. Neff é Medley, contra.
Department 1.
Mr. Justice Burnett
delivered the opinion of the court.
In a petition for rehearing counsel for defendant press upon our attention the following extract from Pippy v. Winslow, 62 Or. 219, 223 ( 125 Pac. 298 ):
“Under the circumstances of this case, that part of the building which passed under the inspection of Mr. 'Winslow, the owner, and Mr. Tohey, the architect, and was approved by them in good faith, expressly or by implication, was not open to objection by them after-wards, and plaintiffs may recover therefor” — citing authorities.
That was a suit to foreclose a mechanic’s lien. On the hearing in this court we were called upon to decide *124 questions of fact as well as of law. We considered, as stated, “the circumstances of the case,” and in the excerpt quoted determined an issue of fact and not a question of law. The instruction desired by the defendant, in the instant case and the refusal of which was assigned as error demanded that the court charge the jury as a legal conclusion that the inspection of the building foreclosed the plaintiffs from ever thereafter objecting to the work thus approved. The cases relied upon to support this doctrine were where the architect was made the final arbiter as to the excellence of the work and compliance with the contract. The stipulation gave him jurisdiction to hear and determine disputes of that character and made his adjudication final. There is no such situation in the case at hand. However much we may believe that a man experienced as the superintendent of the plaintiff may have been, actually knew the quality of the work done by the defendant, yet that was a question of fact for the jury and we cannot say as a matter of law that he did know or that the plaintiff is bound by his knowledge. The petition fails to distinguish issues of fact and questions of law, and, hence, must be denied.
Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Harris concur.