ON REHEARING.
Jenkins, P. J.The original position taken by counsel for plaintiff in error with reference to the phase of this case dealt with in the first division of the syllabus, as we understood and construed it, was that the plaintiff's petition did not, when properly construed, especially in the light of the amendment to the petition, indicate that the plaintiff had become the purchaser of the goods, the value of which was sued for. It was then urged in the brief of counsel for the plaintiff in error that the petition “does not unqualifiedly state that the plaintiff was purchaser under the contract, but distinctly states that the goods were, by the plaintiff, bought for and on behalf of Kyle & Gettys.'' In other words, as we have heretofore construed the contentions of the parties, there did not appear to be any question as to whether the plaintiff's original cause of action arose out of and under the contract set up by the defendant in its answer as exhibit A, but the contention of the plaintiff in error resolved itself into what construction was given to the contract by the petition as amended, and the legal effect resulting from such construction. In the motion for a rehearing, however, the point *44is made, and, as we understand it, for the first time, “that the case sought to he made by the plaintiff in the court below was entirely separate, apart, and distinct from the written contract set up as exhibit A to the cross-action.” While it is conceded in the movant’s brief that the contract set up by the defendant as exhibit A was in effect between the parties at the time of the transaction described in the original suit, it is argued and contended on rehearing that the transaction was an “isolated, single, separate, and totally distinct transaction, not involving in any possible view of it the construction of the intent and meaning of contract exhibit A to the cross-action.” While the movant still insists that the petition as amended does not set forth a transaction of purchase and sale, it being contended that Kyle & Gettys Company was the purchaser and Mincey Manufacturing Company the seller and that the agent had merely given a credit to the manufacturer, to the return of which he was entitled when the manufacturer refused to ship the goods, the force of the argument, as we see it, lies in the fact that even though the petition did set forth a transaction of purchase and sale, as we thought and still think that it does, if such were an isolated transaction, independent of the contract, it could not amount to an interpretation of the contract then in existence between the parties. Counsel for the respondent on the rehearing invoke the rule that “where pleadings do not make distinct and positive allegations, but are ambiguous or couched in alternative expressions, on demurrer they will be given the construction which is most unfavorable to the pleader” (Baggett v. Edwards, 126 Ga. 463, 55 S. E. 250; Holbrook v. Norcross, 121 Ga. 319, 48 S. E. 922), and they insist that although the plaintiff did not set forth the contract to which the petition makes reference, it has nevertheless shaped its suit by its petition and amendment so as to allege its effect, and that if the petition as amended does not relate to the contract, then it becomes meaningless and ineffective.
Movant urges that the evidence of the plaintiff’s witness Brock, that “the suit we were filing here in Georgia was on an entirely different matter,” supports its contention. This witness was produced for the purpose of identifying certain documentary evidence, produced by the plaintiff under notice, and later offered in evidence by the plaintiff, and related to the methods employed by the plaintiff in handling orders, stating that “the original orders are *45destroyed one year after they are taken, and all the original orders were taken over three years ago. We consider those closed transactions, and the original orders were destroyed. The suit we were filing here in Georgia was on an entirely different matter. We have that here, and all the others were considered by us to be dead issue.” This testimony, reasonably construed, could not be taken to mean that the witness meant to swear that the transaction sued on by the plaintiff was an entirely separate and distinct matter from the contract which existed between the parties, and that it did not arise thereunder, but on the contrary the evidence rather supports the idea that the particular transaction sued on occupied a different status on the plaintiff’s records from the other transactions had under the contract, and involved in the counterclaim, only for the reason that the other transactions were regarded by the plaintiff as closed while this one was regarded as still open.
It will be recalled that in the original petition it was alleged that “on said date, March 10, 1922, petitioner was selling the products of the said defendant company, and when the plaintiff paid the said Mincey Manufacturing Company the said $360, the invoice price of the three cases of merchandise hereinbefore described, the said merchandise became and was the property of this petitioner.” It will also be recalled that the contract set up by the defendant as exhibit A contained a provision for the payment of a 5% commission for selling and guaranteeing the accounts receivable, and provided for the keeping of mutual accounts between the parties and the method of liquidating the same, these provisions being as follows: “We are to render accounts current monthly or as required for shipments made during the preceding month, such accounts current to be rendered on the 15th of each and every month, and we are to receive a commission o£ 5% for all compensation for services for selling and for guaranteeing the accounts receivable, and we shall have the right to deduct this commission from the accounts current. The equity as shown by the account current to be paid by us to you as you may time to time call for same.” With these provisions of the contract in mind, the allegations of the plaintiff’s amendment in which it was set forth that upon the charging of the three cases of merchandise referred to, in the order set out in the petition, to Kyle & Gettys Company, on March 10, 1922, the plaintiff gave to the defendant a credit of *46$342, which, credit was never discharged by payment on the part of the defendant to the plaintiff, and that upon the failure and refusal of the defendant to ship out the three cases of goods in the petition described, the defendant became indebted to the plaintiff for money had and received, appear not only to conform to the procedure provided for by the contract, but must necessarily have related to the agreement already referred to and by which and under which the parties were operating, since not only was the allegation with reference to the giving of the credit upon the charging of the account to Kyle & Gettys Company in exact conformity with the procedure outlined by the contract, but the amendment reduced the amount sued for in exact accordance with the provision of the contract relating to the commission of 5% to which the plaintiff would be entitled under its terms. The plaintiff in its petition having made reference to the existence of the relationship by which the plaintiff was selling the products of the defendant company at the time of the transaction described in the petition, and having made reference to the accounts current between the parties, and having adjusted the petition so as to conform to the commission to which it would be entitled under the terms of the agreement, and it appearing and being conceded that the agreement was in effect at the time of the transaction described in the suit, and no other agreement having been in any wise set forth by the pleadings, or in any wise indicated by the proof, it would seem that this agreement must necessarily be taken to have been the one to which reference was made and under which and out of which the transaction arose. It is true that if the contract, in and of itself, and without reference to any interpretation placed thereon by the plaintiff, should be construed as one creating the relation of an agent guaranteeing the accounts sold for his principal, and not as a contract for purchase and sale, some of the allegations and implications of the petition, and especially of the amendment thereto, might be more in harmony with such a construction, but the theory on which the case was decided and the syllabus written was that the parties had in terms construed the contract for themselves, and we are still convinced that the plaintiff, by the terms of its original petition, unequivocally indicated that the transaction constituting its cause of action grew .out of a previous contract which fixed its status as that of purchase and sale. Not only was it alleged that the plain*47tiff “bought” the goods described from the defendant, but the amount sued for was represented as constituting “the purchase-price of the said described goods,” and it was alleged that upon payment of said purchase-price, “said merchandise became and was the property of this petitioner.” Accordingly, whatever might be the proper construction of the somewhat ambiguous original agreement, we think both the plaintiff and the defendant have construed it for themselves, and, under the principle of law laid down in the first division of the syllabus, we do not think that the plaintiff could have been permitted to contradict its own construction of tlxe contract for the purpose of combating the cross-action, while still maintaining its own action specifically based upon the construction thus sought to be attacked.
Judgment adhered to on rehearing.