The opinion
On Petition for a Rehearing.
Per Curiam.
— The question whether or not the appellee could recover from the citizen the contract price, or any other sum, for the removal of garbage, is not involved in this case.
The right of the appellee to recover in this action does not depend upon the liability of the citizen to pay for the removal of his garbage. Any expression or reasoning in the opinion that there is such liability was not necessary to the determination of this cause. It will be time to decide that question when it arises, if ever, between the appellee and the citizen in an action to recover for the removal of such garbage.
If it were admitted that the garbage producers are not bound by the terms of the contract and can not be compelled to pay for the removal of the garbage, .such fact would not be available as a defense to this action by appellants. No one, unless it be the appellee, could tak<p advantage of such fact. For all that appears in the record he may be willing to comply with the terms of the contract, even if the persons on whom he has agreed to rely for payment are not bound thereby and nothing can be collected from them. If so, he has the same right to recover in this action against the appellants as if he were to be paid out of the general fund of. the city or could compel payment by the citizen.
The appellee, by this action, does not seek to avoid the contract, but to protect the rights he claims under it.
*604 We adhere to our opinion that the judgment of the court below should be affirmed.
Petition for a rehearing is overruled.
Filed Mar. 1,1895.