On Petition foe Rehearing.
Gavin, J.Counsel for appellant, in vigorous and acrimonious language, ask a rehearing.
It is asserted most positively that the statement of facts made by the court is incorrect and without support from the evidence in various particulars. First, in stating that one barrel was to be shipped immediately and the other four about March 25th, provided the first gave satisfaction. Yet, not only is there evidence clearly sustaining the statement, but in their own original brief appears the following, after referring to certain evidence: £ £ This, we think, clearly shows that he sold these goods to L. W. Simonds & Co. on the contract as stated ; that one barrel was to be shipped at once and the other four barrels about March 25th, with but this one condition, namely: that the first barrel so shipped *180gave satisfaction. ” In the light of counsel’s own statement it is difficult to perceive the inaccuracy in ours.
Complaint is also made that we said: “Prior to this, Simonds & Co. had written and mailed a letter directing* them not to send the fourth barrel. ” In discussing this, as also other points, counsel fall into the error of viewing that part of the evidence most favorable to themselves- and of ignoring or disregarding that to which we are bound to give effect, namely: the evidence most favorable to appellees. Romain testified that this letter was written and mailed at 10 A. m. a day or so before the receipt of the goods, while George T. Simonds says it was written the day before the bill of lading was received.
Considering the distance from the point of shipment,, the jury might well have found that this letter was-written prior to the shipment, although the particular time, whether just before or after the shipment, is wholly immaterial in the view of the case taken by the court, which was that the rescission of the sale was a completed transaction through the letters written by each to the other. Whether there was one or two each way is immaterial.
Counsel assert that they find “no evidence at all of the words used by the court” as to the contents of the letter written by Watsons to Simonds, and yet in the record, p. 41, lines 15-19, we find the evidence substantially and almost literally as set forth in the opinion.
It is said that the admission of certain evidence of E. H. Watson was “the baldest kind of an error. It was an outrage.” Yet counsel, in their original brief, did not see fit to refer to it.
So likewise the fourth cause for rehearing depends-upon an alleged error in the introduction of evidence as to which no complaint was made.
Filed September 26, 1895.Any errors not presented in the original hearing are thereby waived, and cannot be raised for the first time on petition for rehearing. Elliott App. Proced., section 557.
We have given to the petition careful consideration and to the record a thorough re-examination, and are satisfied with all the material statements, both of law and fact, contained in the original opinion.
We are strongly impressed with the belief that coun- ' sel’s care in examination of the record has not been equal to their zeal for their client’s cause.
Petition overruled.