In his petition for a rehearing appellant calls attention to one point urged in the opening brief which was not noticed in the opinion, namely, that a custom *Page 763 and usage prevailed between plaintiff and defendant and between plaintiff and other persons in Oregon with whom it had dealings, to the effect that the sale was not complete until plaintiff's acceptance of the seller's offer was confirmed by the latter. There was evidence tending to establish the custom as claimed by defendant, but there was evidence the other way sufficient to produce a conflict. Besides, if there had been a usage between the parties in former dealings it could be disregarded or waived by them in any particular transaction. We think the evidence in the present case shows that both parties treated the order as accepted without further confirmation on the part of either.
We have re-examined the other questions and do not find error in our former conclusions. We think appellant disposed, in his argument, to overlook the force of the rule where the evidence in the case is conflicting.
Rehearing denied.
Buckles, J., and McLaughlin, J., concurred.
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