On Petition for Rehearing.
PER CURIAM.Nothing in the petition for rehearing persuades us that our original decision was in error. Both originally and on the petition for rehearing, we have carefully considered the support for the district court’s findings, both tentative and final, and we see nothing in the petition or elsewhere to require any modification of our decision.
However, we do modify our opinion as to the fifth cause of action. Upon further consideration of the record, we note that BIC did learn of the returned check before trial. Nevertheless, we see nothing in that fact to disturb our analysis. We therefore merely amend our slip opinion at page 939, line 16 [244 F.2d 254.] by replacing the words “the trial’’ with “November 13, 1952.”
As to allocating the 292 bales to the 148.5 tons on the Steel Artisan which were part of the 395 tons allegedly on consignment, see 134 F.Supp. 719, 762, we did not intend our opinion to require any particular allocation of this shipment, and specifically left that issue open. See slip opinion, page 939.
As to the final accounting, BIC misreads our opinion. We made no decision or allocation of any wools other than the 70 tons on the joint venture. We specifically left open the issue of whether the ultimate settlement agreement was for 150 tons at $1.25 or 120 tons at $115,000. of which only 80 tons were accepted. Thus, the inconsistencies alleged in the petition have no basis in our opinion.
As to the counter-claim, BIC has presented no persuasive reason why this issue should not be reconsidered by the district court in the light of all other findings. Admittedly, it is very unusual to treat the admission of a party as less than conclusive, but we see no reason why this should not be done as a matter of discretion in the extraordinary circumstance where justice requires it.
Petition for rehearing denied; opinion amended as indicated.