The original opinion herein is long and exhaustive, and we had thought that our reasoning, supported by numerous authorities, might even convince counsel for the respondents that we could not have come to any other conclusion than we did. We were wrong in so thinking, and a petition for a rehearing has been filed herein. We may, however, at least say to counsel that the case received a most thorough consideration at the hands of the court and that a most searching examination of the authorities was made. Counsel for the respondent thinks that some of the statements as to the facts are erroneous. By re-checking we find that this objection seems not to be well taken, and we think that the opinion fairly states the facts.
The main complaint herein on the part of the petitioner for a rehearing seems to be that we entered a final judgment herein, instead of sending the case back for a new trial. A motion was made during the trial of the case for a directed verdict. In such case at least, this court has the right to order and direct judgment for the party in whose favor the judgment should have been directed. Section 5897, Wyo. C.S. 1920. As indicated in the original opinion, it may be that technically speaking the provisions of that section do not apply in this case. But a judgment or final order may be reversed, vacated or modified by this court as provided by Section 6371, Wyo. C.S. 1920, and the right to do so in a civil case has not been disputed in this court for at least many years. The right exists even in a criminal case. State v. Sorrentino, 31Wyo.499, 228P.283,36Wyo.111, 253P.14. The point decided herein — aside from the minor claim involved in the suit — was that the plaintiff was not entitled to recover anticipated profits of the contract involved in the suit as for the breach thereof, because the contract was not breached, at least in the sense so as to allow the recovery of such profits, for the reason that plaintiff went ahead with it. Even though he *Page 107
may have done so under protest, because of the changes and alterations, still he went ahead with it, and that effectually prevented him from claiming the contract as ended. We can conceive of no further evidence that might be produced in this case that could possibly change our conclusion under the undisputed facts. Counsel have not indicated how a different result might be reached. He again cites Borough etc. v. New York,200N.Y.149, but as already shown in the original opinion, this and like cases have no application whatever in the case at bar. Counsel still insists upon the correctness of the theory on which this case was tried. He has not intimated that it might be re-tried upon some other theory which would alter the situation, and it would accordingly be wholly useless to do anything but enter a final judgment herein.