The opinion
*584 Oil Petition to Rehear.
Defendant Max Friedman has petitioned the court for a rehearing insisting that the court erred in not reversing the judgment of the lower court after finding that the testimony of the witness Land was erroneously admitted and after sustaining defendant’s assignment based upon the admission of this evidence.
As we understand the petition to rehear the insistence is that, with this evidence out of the record, there is no evidence that Wills, the architect, accepted the job on behalf of Mr. Friedman and that until the acceptance of the work is shown the Georgia Showcase Company cannot prevail. We do not think this is a proper matter for consideration on the original action to regain possession of the property conditionally sold but that it would be material only upon consideration of the cross-action which we held, for reasons set forth in our original opinion, was properly withdrawn from the jury.
We thought the excluded testimony immaterial in view of our conclusion that the cross-action could not be maintained because Friedman gave instructions for altering the fixtures too late for their installation to be completed within the contract limit as to time, thus indicating that he did not intend to rely upon strict performance within the time limit or'treat time as of the essence. As sustaining that view Petway v. Loew’s Nashville & Knoxville Corp., 22 Tenn. App. 59 , 117 S. W. (2d) 975 , was cited. To the same effect see Hayes Mfg. Co. v. McCauley, 6 Cir., 140 F. (2d) 187.
Other questions made by the petition to rehear are covered by our original opinion and need not be further considered. We find the petition to rehear without merit ánd it is overruled.
Hale and Burnett, JJ., concur.