On Petition to Rehear
CHATTIN, J.Appellant has filed a petition to rehear complaining of our holding that the instrument sued on in this case was a lease; and that plaintiff could not invoke the doctrine of estoppel to create a right to recover damages for loss of profits plaintiff may have realized from mining all the coal in the Kelley Creek area since the lease and the subsequent oral agreement provided plaintiff could only mine portions of that area.
*641We gave our reasons for holding the contract was a lease in our original opinion.
In support of this phase of the petition able Counsel make an earnest argument, but it is only a re-argument of matters made by them and considered and determined by us. It does not point out any new matter of law or fact overlooked, but reargues things which Counsel say we improperly decided.
“The office of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which the counsel supposes were improperly decided after full consideration. ’’ Louisville & N. Railroad Company v. United States Fidelity & Guaranty Company, 125 Tenn. 658, 148 S.W. 671; Black v. Love and Amos Coal Company, 30 Tenn.App. 377, 206 S.W.(2d) 432.
It is next earnestly insisted we were entirely wrong in our interpretation of the written instrument as to the areas to be mined.
However, we are convinced we were right in our interpretation. On page five of our original opinion we quoted from the written instrument which states in unambiguous terms that defendant was to designate the portions of the lands to be mined and the “areas to be skipped for any purpose.”
On page seven of our opinion we set forth the testimony of plaintiff’s witness, W. J. Travis, who stated it was understood corridors were to be left in virgin coal areas for future underground mining operations. The proof shows the Kelley Creek area was a virgin coal area and we so stated on page eight of our opinion.
*642In the alternative plaintiff requests us to reverse and remand the case so plaintiff, “might' amend his suit in the trial court to seek a reformation of the writing to include and attach the maps and the list showing the Kelley Creek area as one of the areas to be mined, so as to sue in the alternative for such damages as it would be entitled to if allowed to mine only the portions that the defendant should reasonably designate, and so as to take a nonsuit and file the suit in equity if the defendant should choose to demur to the amended suit in law to reform the writing.”
It is argued we have the power to do this under authority of T.C.A. sec. 27-329, which provides:
“The court shall also, in all cases, where, in its opinion, complete justice cannot be had by reason of some defect in the record, want of proper parties, or oversight without culpable negligence, remand the cause to the court below for further proceedings, with proper directions to effectuate the rights of the order, and upon such terms as may be deemed right. ’ ’
We cannot agree. Counsel deliberately elected to sue for loss of profits without first seeking to have the contract reformed. The record shows the trial judge suggested to Counsel plaintiff should take a nonsuit. Counsel insisted upon plaintiff’s election to sue for damages. By so electing under these circumstances, we cannot see how Counsel can now insist it was an oversight.. Nor do we think we have the power to reverse and remand the case with leave to plaintiff to amend or sue in equity so as to seek a reformation of the contract; and,' at the same time, deny to the defendant its right to rely on the doctrine of election of remedies as a defense.
*643The petition to rehear is denied with costs.
Petition denied.
Shriver and Humphreys, JJ., concur.