ON REHEARING GRANTED On November 5, 1946, we reversed the decree appealed from and thereafter granted a rehearing. Upon further consideration of the case we are convinced that we were in error in the first instance. Stovall's letter of conditional acceptance dated January 10, 1945, limited the one-third item to that "salvaged so far as the corporation is concerned." Admittedly the corporation, Stovall Properties, Inc., saved nothing out of the litigation. Williams then rests his claim for relief upon his statement that: *Page 485
". . . 'if I sign the praecipe for dismissal will you upon completion of the purchase by Crestview issue to meas my contingent, compensation one-third or 5 of the 15 shares coming to you or your nominees under the contract.'" Whereupon Stovall replied, "Yes."
The proof of this assertion is affirmed by Williams and denied by Stovall. The chancellor weighed the evidence against Williams, who had the burden, and dismissed the bill. In this we see no reason to put the chancellor in error.
The judgment heretofore entered is vacated and we recede from our former opinion and the decree appealed from is affirmed.
Affirmed.
THOMAS, C. J., BARNS, J., and FABISINSKI, Associate Justice, concur.
TERRELL, BUFORD and CHAPMAN, JJ., dissent.