On Rehearing.
Complaint is made on motion for rehearing of our statement as to the manner and procedure of the trial in the court below, that our statement is not borne out in full by the record. We based our statement largely upon an instrument prepared and filed by the trial judge, who we think, in an effort to make clear just what was done in the trial, substantially says what we have stated. In any event, our statements are deducible from the whole record and the court’s prepared and filed statement of the manner in which the ease was tried.
It is further complained that in our opinion, in discussing the option of purchase given by appellee to appellant, and upon which recovery was sought, we say, “it further provided that if for any cause whatsoever defendant did not consummate the purchase from the parties mentioned in the option,’ etc., that such statement is not supported by the record, but was in conflict with the option agreement itself.
Our statement in the opinion is not a quotation from the instrument in question, but is a conclusion drawn from a consideration of the contents ot' the instrument. Just prior to the statement complained of, we said: “This instrument is clear and unambiguous in its terms, and, under the evidence, denies plaintiff the right to recover, because it recites that plaintiff thereby transferred to defendant his option to buy from Geo. O. Lowe and the McCanles Building Company the timber on said 98,800 acres of land, and further recited that, by virtue of and in consideration of his transferring his said option to defendant, if defendant purchased either the land or *484timber, or botli, it would pay to plaintiff a commission of 6 per cent, of tbe purchase price, not to eacceed $9,000” — and then followed the statement in the opinion complained of. It is clear that we were stating the legal effect of the instrument, and not quoting from same. Immediately following the statement complained of we said: “This instrument we think, clearly was intended to apply and to glive plaintiff the right to a commission only if defendant purchased the property under and by virtue of the option transferred by plaintiff to defendant, from the grantors of the option to plaintiff. No such purchase was made, and so, under the unambiguous terms of the option contract, plaintiff is not entitled to recover by virtue of said transfer.”
The motion for rehearing is overruled.