ON PETITION FOR REHEARING
Tooze, Powers, Kerr, Tooze & Peterson, Portland, for the petition. Robert Y. Thornton, Attorney General, and Harold E. Burke, Assistant Attorney General, Salem, contra. Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Denecke, Holman and Lusk, Justices. LUSK, J.Defendant has filed a petition for rehearing in which it expressly refrains from questioning, though it does not concede the correctness of, the conclusions *414heretofore announced by us. Instead, it raises a new point, not included in its briefs and first mentioned by its counsel on the oral argument, and not discussed in our former opinions. The brief in support of the petition says:
“The contract between the defendant and its producer patrons provides (Ex. 16, § 10):
“ ‘10. In addition to authorization of deduction from pool proceeds of any indebtedness owing by Producer to the Cooperative, Producer authorized (sic) deduction from pool proceeds otherwise payable to him or advances thereon, for any indebtedness owing by Producer to Tillamook County Creamery Association * * *.’ (Emphasis added)”.
The brief then quotes ORS 583.525 (3) (f), which reads:
“After the above deductions have been taken, if any, a cooperative corporation or association organized under the laws of any state and engaged in marketing or making collective sales of milk produced by its members or other producers represented by or through the cooperative, may then take and retain such other deductions from payment to its members or producers, differentials as may be specifically authorised in advance by contract or membership agreements between the cooperative and its members.” (Italics the defendant’s.)
It is, therefore, argued that, since we have held that advances made to the producers by Tillamook County Creamery Association were loans, not payment, the amount of such advances constituted deductible items under the terms of the contract and, hence, the defendant is not liable in this proceeding.
The defense is not, under the record, available to the defendant.
*415Exhibit 16 is a printed form purporting to have been signed by two producers and not signed by anyone on behalf of the defendant. The only evidence regarding it was given by George Milne, who was president of the board of directors of Tillamook Cheese and Dairy Association in the summer of 1963. He testified that Exhibit 16 was an “individual marketing contract between a producer and the Tillamook Cheese and Dairy Association.” He further testified:
“Q Now, Mr. Milne, I’d ask you to look at exhibit number 16 again. (Handing exhibit to witness.) And I would ask you if this is representative of the marketing contracts that you had with your, producers during that period of time?
“A Part of them.
“Q Would any of the producers involved in the present instance have marketing contracts of this type?
“A Some of them, yes.”
There are approximately 100 producers whose claims are involved in this proceeding. There is no evidence as to how many were parties to the contract (Exhibit 16), or how much money Creamery advanced to those who were such parties; and the proof is, therefore, wholly insufficient to warrant the court in holding that paragraph 10 of Exhibit 16, even though a valid contractual provision, can be invoked as a defense to this action.
The petition for rehearing is denied.