ON SECOND MOTION EOR REHEARING.
Counsel for plaintiff in error filed a second motion for rehearing, in response to the opinion of the court rendered on their first motion for Tehearing. In this second motion for rehearing they insist that the Kyle & Gettys transaction could not have related to the ■ contract set forth by the defendant ■ as exhibit A, for the reason that the preliminary advance was neither 75% nor 85%, as provided for by the contract, but represented the entire purchase price less 5% commission, and that, therefore, the transaction must have been separate and independent of the contract. Believing, as we do, contrary to the contentions of the movant, that the original petition was based clearly and unequivocally upon a transaction of purchase of goods by the plaintiff, it being alleged that the goods were “bought” by the petitioner, and that upon the payment of the “purchase price” by it “said merchandise became and was the property of petitioner,” the question which gave rise to doubt and difficulty to this court on the original motion for rehearing was whether or not the record must be construed so as to indicate that the Kyle & Gettys transaction arose under and out of the contract then in existence between the parties to this litigation. While it is true that the advance payment was greater than that required by the terms of the contract, it also appears to be true that it was not and could not have been an ordinary independent transaction of purchase and sale, for the reason that the commission provided by the contract, to which the plaintiff would be entitled, was claimed *48and deducted by the plaintiff in this particular transaction. Counsel call attention to the fact that the court speaks of this 5% as a “commission,” which word, they insist, would be inappropriate to a contract of purchase and sale. . As stated in the opinion on the former motion, it is true that if the somewhat ambiguous contract, in and of itself, and without reference to the 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, might be more in keeping with' such a construction, but the theory on which the case was decided and the original syllabus written was that the parties had in terms construed the contract out of which the Kyle & Gettys transaction arose as being one providing for future purchases and sales. It is true, as urged by movant, that the contract set out by the defendant as exhibit A was not set forth' by the plaintiff in its petition, although, as we construe the petition, certain references were made thereto. As we understand and construed the plaintiff’s action it was not an action on the contract, but was an action for money paid in advance as the purchase-price of goods, upon a transaction which arose out of and under the contract. In such a case, the transaction giving rise to a cause of action in and of itself, it was not necessary to set forth the contract out of and under which it arose, although on its appearing that the transaction did arise under and out of the contract, the rights of the parties would be governed thereby (International Harvester Co. v. Morgan, 19 Ga. App. 716, 92 S. E. 35), and the construction placed upon it by the plaintiff by the nature and character of its action, and acquiesced in by the defendant in its counterclaim, must be given effect, since the plaintiff could not be permitted to contradict its own construction of the 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. Rehearing denied.