The opinion
On Rehearing.
Appellants and appelless have each filed rtiotions for rehearing herein. Appellants pray that we ascertain the amount of commissions due and enter judgment for the amount of excess retained by. appellees. Appellees seek to have us set aside our former judgment and affirm the judgment of the trial court. We will first consider the motion of appellants.
It might be that we could, by reference to the statement of facts, get an idea of the total amount collected and disbursed. The pleadings of plaintiffs do not seek judgment against defendants personally. The gravamen of the action is for a construction of the will, and that there then be a distribution order.
Appellants further allege that since October, 1937, appellees have collected various sums of money, the amounts of which they do not know. Appellee’s answer referred to an audit attached thereto. If same was ever attached it does not appear in the transcript. Possibly it is in the statement of facts. We are in grave doubt as -to the sufficiency of plaintiffs’ pleading to support the judgment which it is sought to have us render. In order to award the relief now sought we would have to go beyond the relief prayed for in the petition. A judgment for the excess commissions retained would not represent appellants’ ultimate rights herein.
Appellants’ motion is overruled.
In appellees’ motion there is urged a ground which we did not discuss in the original opinion. It is stated in substance that plaintiffs, acting through their attorney, agreed that defendants might retain as compensation.fifteen per cent on the Looney note. There is no consideration pleaded for the accord and satisfaction urged. It is true plaintiffs do not plead want of consideration. The matter is urged as an estoppel. How and in what defendants have changed their position does not appear from the answer. Even on the hypothesis that the matter alleged under the proof is a defense, it is only a partial defense.
On another trial the respective parties might desire to amend their pleadings. On the whole we think it best to overrule each motion. It is so ordered.