*191ON MOTION FOR REHEARING.
PER CURIAM.W¡e. are asked to grant a rehearing in this cause chiefly on the ground that our decision is in conflict with that of the Supreme Court when the case was before that tribunal (201 Mo. 217). As is stated in the foregoing opinion, the case was heard in the Supreme Court on an appeal from the action of the trial court in sustaining a demurrer to the evidence submitted for plaintiff. That court very properly held that that evidence was sufficient to make a case for a jury and remanded the cause for a full hearing at another trial. But the case made then is greatly different, in essential particulars, from that now presented.
It will be observed that the foregoing opinion is based principally on the ground that plaintiff’s option to sell was not exercised on the day named in the contract, October 6, 1890, and that no tender of a deed was made by him on that day; and that a tender was not waived by defendant by a repudiation of the contract. It will b.e further observed that at the last trial no showing was made by plaintiff of an exercise of the option, or of a tender of a deed on that day. Yet, in these vital particulars the evidence before the Supreme Court was altogether different. The evidence, as then presented, disclosed that plaintiff did exercise his option and make his request on the day named in the contract. The importance and necessity of that being done at that time did not escape the attention of the Supreme Court. For it will be seen that in stating the evidence at the first trial, the court, at page 226 of the report, expressly say (italics ours) that: “Plaintiff had previous to that date and on that date notified them that he desired them to so repurchase and requested them to do so and they refused, . . .” Plaintiff’s effort to carry out the contract on his part on that day is again stated at page 229 of the report.
*192Now on the last trial, from the result of which this appeal was taken, there was no such evidence. The present record not only fails to disclose evidence of that character, hut the face of it shows that it is conceded that plaintiff did not take any action on that day, and the effect is to show that he did not perform on account of the acts of defendant, which are claimed to have made it unnecessary. The greater part of plaintiff’s brief and argument is taken up in his effort to sustain that position; and we state in the opinion our reasons for concluding that he failed in that effort. We think our opinion is not in any way in conflict with that of the Supreme Court, but, on the contrary, is in harmony therewith.
We, of course, cannot enter into the controversy' between the parties as to whether the evidence at the first and last trial was substantially the same. We have only the evidence at the last trial before us and we take the evidence at the first trial to be as the Supreme Court has stated it in the opinion; for, undoubtedly, it was upon that statement of the evidence the court formed its conclusion and pronounced its judgment. It would be unprecedented for this court to enter upon an examination as to whether the Supreme Court properly understood or stated the evidence at the first trial. We assume that it did.
We have gone over all the points suggested and think them not well taken. The motion is overruled.