On Petition to Rehear.
Complainant, Helen Corinne Scales Trice, Executrix, has filed a petition to rehear in which she argues we, in our opinion, “overlooked the controlling evidence that there was no agreement reached between the defendant, Lewis E. Hewgley, and Joe W. Scales at the time of the execution of the conveyance to the mill and the third deed of trust on October 21, 1955, that the $10,936.62 note formed any part of the consideration for the mill conveyance. ’ ’
Although, complainant insisted in the trial court and in her brief and argument in this Court that Mr. Cheat-ham acted as the Attorney for Mr. Scales during the negotiations for the transfer of the mill property and any statements made to him relative to the transaction by Scales were privileged, she now insists the testimony of Mr. Cheatham to the effect Scales agreed to reconvey the mill to Hewgley at any time he would reimburse him for his capital investment in the property as competent. She argues this testimony, when considered with the further testimony of Mr. Cheatham that at no time during the negotiations between Scales and Hewgley did Hewgley claim any payment or credit on the $10,936.62 note, shows no agreement was reached between the parties this note was to be cancelled in any event.
*278It is then argued, although there was testimony of an oral agreement the note would he cancelled as part of the consideration for the transfer of the mill in the event Hewgley failed to exercise his option to repurchase, such testimony of such an agreement was prior to or contemporaneous with the conveyance of the mill and the third deed of trust on the Sugar Creek farm executed on the same day securing the $14,000.00 note, “and any other indebtedness we may now or hereafter owe said Joe W. Scales, ’ ’ and would contradict the quoted provision of the third deed of trust and is incompetent.
Thus, complainant insists there is no competent evidence in the record of any discharge or forgiveness of the $10,936.62 note.
The fact Hewgley made no claim of payment or credit on the note to Mr. Cheatham is no proof an agreement was not reached the note would be cancelled as part of the consideration of the mill transaction. Nor is the testimony of Mr. Cheatham to the effect Scales agreed to reconvey the property to Hewgley upon Hewgley reimbursing him for capital improvements to the property conclusive no such agreement was reached. This testimony lifted from the testimony of Mr. Cheatham and out of context does not show that he also testified Mr. Scales agreed to cancel the indebtedness of Hewgley to him existing prior to the min transaction as part of the consideration therefor.
We deem it unnecessary to reiterate our reasons for finding the preponderance of the evidence in the case sustained the insistence of the defendants the note would be cancelled as part of the consideration for the mill transfer in the event Hewgley failed to exercise his option to repurchase.
*279We are unable to agree this evidence contradicts or varies the terms of the third deed of trust because the proof shows the note would not be cancelled or forgiven unless Hewgley failed to exercise his option to repurchase. The indebtedness remained binding upon defendants during the option period and in the event Hewgley exercised his right to repurchase the property.
It results the petition to rehear is denied with costs.
Shriver and Humphreys, JJ., concur.