On Petition for Rehearing.
(179 Pae. 905.)
Petition for rehearing denied.
Mr. H. E. Slattery, for the petition.
Mr. G. A. Hardy and Mr. A. E. Wheeler, contra.
In Bane.
BENSON, J.Counsel for appellants presents a number of propositions upon which it is urged that a rehearing should be granted. The first of these to be considered calls our attention to the following quotation from the opinion:
“The omnibus motion to strike out was rightfully overruled even as to the matter defectively pleaded.”
This, of course, was a clerical error, regarding which steps have already- been taken toward making the necessary correction in the published reports. The statement of the ease, preceding the opinion, shows that the writer clearly had in mind the true disposition of the motion. What the court intended to say was:
*506‘ ‘ The omnibus motion to strike out, should have been overruled even as to matters defectively pleaded.”
It is also strenuously urged that the evidence abundantly establishes the rescission of the contract. Upon this point it may be said that counsel refuses to distinguish a rescission by agreement of the parties from a rescission brought about by operation of law. As clearly pointed out by Mr. Justice Burnett, in the former opinion, a rescission by agreement of the parties is a contract, and before the contractual relation can exist, there must be a meeting of the minds upon the terms of the agreement, or there is no contract resulting from the negotiations. We therefore repeat that the evidence discloses affirmatively that the parties did not understand the terms alike, and did not, in fact, agree upon the terms of a rescission. It follows that a mutual rescission, such as is pleaded by the defendants was not proven.
The other questions discussed in the petition are sufficiently considered in the former opinion.
A rehearing is denied.
Modified. Rehearing Denied.