ON PETITION FOR REHEARING
Kendall, J.Appellee’s petition for rehearing contends in part that this court erred in its original opinion in granting an accounting of the partnership for the period beginning September 10, 1949 (effective date of Chapter 38 of the Acts of 1949) to April 8, 1953, in that such decision constitutes a material variance from the allegations of appellant’s complaint in the trial court; and that this court further erred in holding that appellant was a silent partner within the provisions of the 1949 Act.
We believe that the original opinion is clear, concise and sufficient to show legal reasoning for the result reached in view of the factual situation presented by the evidence and the various statutes of our state applicable to licensing of funeral directors and embalmers. The various sections of the statutes cited by this court in its original opinion including the 1949 Act wherein the Legislature makes reference to “silent partners” were in full force and effect when *639this action was tried in the lower court, and it is presumed that appellee knew of the provisions thereof, ■thus appellee’s contention that our decision constitutes a material variance from the allegations of the complaint is without merit. All the dates were before the court and all the parties in the original trial, as well as evidence of the partnership between these parties and Mr. Higgins.
Appellee seems to lose sight of the fact that the uncontradicted evidence reveals that the appellant and appellee were engaged in the funeral business as a partnership from 1922, or 1923, with one Mr. Higgins until Mr. Higgins’ death in 1943, at which time the partnership was terminated. In appellant’s complaint, it is alleged that these parties entered a partnership March 25, 1943, for the purpose of operating a funeral home and continued to so operate until April 8, 1953. It is for that period that appellant sought an accounting. It is uncontradicted that appellant during those years was not a licensed funeral director or embalmer; however, there is evidence of.probative value that he did work around the funeral home and had a joint bank account. The trial court denied the accounting for the entire period on the belief that it was an illegal contract. In so doing doubtless the trial court considered and so construed Chapter 165 of the Acts of the General Assembly of 1939, Sec. 63-717, Burns’ 1951 Replacement, as the statutory provisions designating the qualifications of a funeral director or embalmer. However, during the period of the working arrangement between these parties, Chapter 38 of the Acts of 1949 was pased by the legislature after which the parties continued the working arrangement which Act designated a new and different clasification referred to therein as silent partners. The original opinion goes *640into detail as to the evidence of the particular arrangement between the parties.
It is apparent that this act removed any restrictions of the 1939 Act in reference to prohibiting the association of unlicensed partners.
To ascertain the legislative intent of the 1949 Act, we may look at the prior law in reference to licensing of funeral directors and embalmers. Lincoln School Tp. v. American School Furniture Co. (1903), 31 Ind. App. 405, 68 N. E. 301.
In the case of Greenbush Cemetery Assn. v. Van Natta (1911) (Transfer Denied 1912), 49 Ind. App. 192, 94 N. E. 899, the court said:
. . The legislative intention, however, is to be ascertained from an examination of the whole as well as the separate parts of an act, and when so ascertained the intention will control the strict letter of the statute, or the literal import of particular terms, where to adhere to such strict letter or literal import of terms would lead to injustice, absurdity or contradictory provisions. . .
In appellant’s brief it is said, “In the lower court appellee made such contention and established that appellant could not possibly have entered into a legal partnership with appellee in 1943.”
This court upheld appellee’s contention that appellant could not have made a legal partnership in 1943 or even up until the effective date of the 1949 Act but by the passage of the 1949 Act a different classification was made by the legislature which act was in full force and effect when this case was tried in the lower court. This does not constitute any variance for the reasons already stated.
We have read the cases cited by appellee in reference to the conditions presented but the same are not applicable in any particular to the facts of the case under *641consideration and the law applicable thereto. There is a vast difference in the facts of this case from a suit brought upon one theory and a recovery based upon another. That is not the case instantly.
Considering all the evidence before the trial court and in conjunction with the various statutes applicable thereto, we find no error in the original opinion.
Petition for rehearing denied.
Note. — Reported in 129 N. E. 2d 362. Rehearing denied 130 N. E. 2d 482.