*163On petition for rehearing.
Nuesst-e, J.The defendant has petitioned for a rehearing. He urges that the, contract out of which this litigation arises is one of agency and not one of sale; that a construction of this contract is the vital and controlling matter on this appeal and has been overlooked.
It is sufficient to say that the case was tried in the court below upon the theory that the contract was one of sale. The only issue submitted to the jury was as to whether there had been a cancellation thereof prior to the shipment of the goods. The opinion heretofore handed down disposed of the case on the theory on which it was tried. It was not necessary for this court to determine and it did not determine the character of the contract.
The petition is denied.
Bronson, Cli. J., and Birdzet.u, Johnson, and Christianson, JJ., concur.