¶1On Rehearing.
¶2In his brief in support of his application for rehearing appellee’s counsel asserts that we were misled by appellant’s emphasis and direction of his argument toward count 2 of the complaint, and asserts that he, counsel for appellee, may have been remiss in failing to point out in his original brief that the judgment of the lower court is properly referable to count 1, the common count for money had and received.
¶3We think a full answer to this contention is found in the original brief filed by counsel for appellee wherein he states: “The evidence made it apparent during the trial that the plaintiff could not recover for money had and received. So with leave of the court during the trial at the close of his case, the plaintiff amended to add count two.”
¶4Counsel further contends that the judgment of the lower court should be sustained on the theory that the transaction between Werneth and Lord constituted a sale of the truck to Lord, as evidenced by the bill of sale, and was not an agency transaction. If this theory can be maintained it must be under count 2.
¶5Count 2 itself clearly spells out that Lord was a factor of Werneth’s to sell the truck. While a bill of sale was given by Werneth to Lord for the truck, both parties treated this merely as a convenience to forward the sale of the truck by Lord. Again we quote from appellee’s original brief as to the nature of this transaction: “He (Werneth) found it necessary to sell the truck. So August 15, less than four months after he bought it, plaintiff approached Defendant Lord, the appellant here. Lord was a professional long time used car-truck buyer-seller-broker. Lord didn’t want to buy the equity outright. However, he agreed to sell it for the Plaintiff and advanced him $300.00. The agreement is clear. Lord gave Plaintiff a receipt, which expresses it. (Here counsel sets out the receipt shown in opinion above.)
¶6* SjS 5k …
¶7“4) On the same day as part of the transaction, for the purpose of facilitating the closing of such sale as Lord might make Werneth gave him a ‘bill of sale’ to show ‘title.’ ”
¶8We think appellee’s counsel’s above statements made in his original brief are fully supported by the pleadings and evidence. This being so the legal principles applied in the original opinion necessitate the conclusions there reached. The application for rehearing is therefore denied.
¶9Application denied.