The appellant’s petition requests a rehearing limited to the rejection of its alternative claim to the potash proceeds received into the Special Account after September 14, 1939, amounting to $966,-219.97.
Two grounds of error in our opinion of June 17, 1958 affirming the judgment below, are averred. The first asserts that in relying on the trial court’s opinion this court “overlooked the fact that the trial court gave no consideration to this point in its opinion.” In this the petitioner is mistaken. Judge Wein-feld’s opinion dealt expressly with the claim of constructive trust and. equitable lien. See 146 F.Supp. 563, at page 580.
The second ground of alleged error is that rejection of the alternative claim is “directly contradictory to the expressed conclusions in the opinions of this court and the trial court.” In this also we think the petitioner is mistaken. The trial court’s opinion, at page 574, found upon all the evidence that the arrangement for Hope to function as “substitute receiving bank” and “temporary banker” had the consent of Schroder as receiving bank and banker, and was acquiesced in and ratified by the plaintiff; and “under the circumstances the remittances made to Hope must be given effect as payments under the trust deed, and so considered, there was no default with respect to the loan service requirement for May 1, 1940 which was due no later than April 24, 1940.” The appellant’s claim of constructive trust as to the potash proceeds credited to the Special Account on the Securitas books after September 14, 1939, rests on the theory that this constituted “a clear breach of duty by the Syndicate” which would impose a constructive trust on the diverted proceeds in favor of the appellant Trustee. But since on the dates when the credits were entered on the Securitas books, there was no default as to the loan service requirements, the items were properly treated in the same manner as *585the potash proceeds accumulated prior to September 1939, that is, as “remainder proceeds.” We see no inconsistency between rejection of the constructive trust claim and the other conclusions expressed in the opinions of the trial court and this court.
Petition denied.*
Due to absence from the circuit Judge MOORE has not seen this opinion but before bis departure he voted to deny tha petition.