On Motion for Rehearing.
It is urged in the motion that this court decided the case upon controverted facts. In this statement appellee is in error. The ease was disposed of on what we considered the uncontroverted facts. In addition to our former statement, we think 'the written agreement evidenced the facts that all the vendor’s lien notes were in the bank, subject to Frazier’s control, and that the notes which Reed was to receive were not delivered until they were delivered to the Wheatland Investment Company. That company at that time executed its receipt to Frazier for the notes, reciting that the Reed portion thereof were junior lien notes and should remain so, if Reed failed to sell all the notes — both his (Reed’s) and Frazier’s. The contract and receipt were interpreted at that time by the parties as making the Reed notes junior lien notes, and both Balaam and Nutting testified such was the understanding of the parties. There is no controversy on the question in the record that we are able to find. The ap-pellee, in his motion for rehearing, criticizes the opinion for a verbal inaccuracy. The word “not” is omitted in the following: “If that was done, then they should be junior notes.” It should read: “If that was not done, then they should be junior notes.” That is, if Reed did not sell the notes, both his and Frazier’s, then the notes held by Reed should be junior. That was the agreement and understanding. Balaam says so and so does Nutting.
In presenting the case originally, appellee attached importance to the blank indorsement on the notes. As it then appeared to us, and as we understood, appellee urged that the indorsement evidenced a waiver of the agreement, or a new contract. The un-controverted 'evidence is that, when the Wheatland Investment Company executed its receipt to Frazier for the notes, the blank indorsement was then on them. The evidence further showed such indorsement was on the notes while they and the contract were in the bank. This evidence we thought *1007then, and now believe, conclusively rebutted any presumption that the indorsement in blank was a waiver of the contract or evidence of a new contract after the "Wheatland Investment Company got possession of them. As between the parties, the contract, receipt, and the admitted understanding fixed the dignity of the lien in Reed’s share of the notes. At most, the indorsement was but a presumption, and being on the notes when appellee’s copartnership accepted them under an express agreement that the Reed lien was a junior one, such indorsement was of no probative force. The expression used in the opinion, “That the saje was made only to a member of that concern” perhaps was sufficient to lead counsel for appellee to infer a finding by us that E. C. Reed was a member of the “syndicate.” We did not intend so to ■ find, but, on the contrary, did find and state in our finding that Reed was a member of the Reed-Allen Realty Company. The notes he executed to Frazier and which were to be junior lien notes represented the commission due the Reed-Allen Realty Company for services performed by Reed on his, firm’s account in selling to himself. We see no reason for changing our views on this case, and the motion is therefore overruled.