To meet the claim made by appellants DuPuy et al., in their petition for rehearing that this court has misstated the facts to the prejudice of their right to petition for a hearing in the Supreme Court we herewith set out in full the portion of the transcript which they assert was ample evidence to support a finding that Dailey was a contracting party: “Mr. Moore. Q. Mr. Dailey, are you a partner of Mr. Burr in this contract f A. I had a written agreement with Mr. Burr. Q. Have you anything to do with the profit and loss *363in the venture? A. Yes. Q. Now, on or about July 1, 1937—■ Mr. Stuart (interrupting). Pardon me. Just before you leave that, so it will clear up the record, he has a working interest of what the agreement is but the contract was to be carried on in the name of P. L. Burr. Mr. Dold. In other words, he was a partner of Burr but the contract was carried on in the name of Burr. Mr. Moore. Mr. Burr and Mr. Dailey were partners on the job but the contract was conducted under the name of P. L. Burr. Mr. Stuart. I don’t think they were partners but he has a working interest. Mr. Dold. Could you let us see the contract? Mr. Stuart. Yes.”
We did not quote this portion of the transcript in the opinion because in its vague and uncertain terms we could not discover any substantial support for a finding that Dailey was either partner or joint adventurer. The fact that he was a partner was expressly denied by Mr. Stuart and counsel for DuPuy chose to drop the inquiry at that point. The nature of Dailey’s legal relation to Burr was not established and the entire quoted colloquy is perfectly consistent with Dailey’s subsequent assertion that he was merely an employee of Burr to be compensated by a percentage of the profit.
Appellants also complain that we failed to notice an argument, first advanced in a supplemental typewritten memorandum, that Burr having accepted the benefits of the proposed contract was estopped to deny that he was bound by all of its burdens. The trial court’s finding, quoted in full in the opinion, that the proposed written contract never became effective because of DuPuy’s wrongful refusal to sign the disputed letter is a complete answer to this argument. No case has been cited by appellants, and we are certain none can be found, holding that a party who proceeds upon the false statement of another that he has signed, or will sign, a letter orally agreed upon as a material part of the written contract will be bound by all the burdens of the proposed contract although the other in violation of his promise refuses to bind himself to the additional burdens contained in such letter.
The petition for rehearing is denied.
Defendants’, and appellants’ petition for a hearing by the Supreme Court was denied February 18, 1943.