For the reasons hereafter set forth, we adopt as the opinion on this rehearing the opinion previously filed. It reads:

The rehearing was granted because of the strenuous contention of Middleton that the question of option or agreement of purchase and sale was not raised in the court below, and that the case was tried on the theory that the agreement was one of purchase. An examination of the record discloses that these claims were raised for the first time in the petition for rehearing.

In the transcript in the first Krobitzsch case there is no discussion or mention of this question. In the record in our case, the only mention is a statement at the beginning of the trial by counsel for the Krobitzschs, which, under the circumstances of the ease, is equally consistent with a claim that the agreement in question was a unilateral one as with one that it was a bilateral agreement. Krobitzschs’ counsel filed in this court an affidavit which shows that in his brief in the lower court, Point V made the contention that the agreement was an option. Middleton concedes that he presented his position on the subject in his reply brief. Krobitzschs’ counsel then in a letter to the trial judge argued the matter further. Thereafter, Krobitzschs’ counsel asked the trial court to adopt a certain finding on the ground that the agreement was nothing but an option. Middleton resisted this request. The court did not find on this question. It merely found that Krobitzsch and Middleton had entered into an agreement which “gave to said defendant George Middleton the right to purchase” the property. In Middleton’s opening brief in this court, Middleton took over two pages to contend that “the exact title of the vendee at any time during the life of the contract was not an issue” in the Krobitzsch decision, quoting from the portion where the opinion states that it was not necessary to determine whether the agreement was an option or an agreement of sale, and hence it was not res judicata in this case. Again, in Middleton’s closing brief, he stated that there was nothing in the pleadings in the Krobitzsch case which put in issue the character of Middleton’s title at the time of the taking by the state, that the judgment in that case cannot be held to be an adjudication of Middleton’s title at that time, and that the only matter in issue was the validity of the agreement and the questions concerning the notices of default. He even stated that had the court determined the extent and character of Middleton’s title, such determination would not be binding upon the parties, as it was not an issue. He again referred to the contention in his opening brief that the District Court of Appeal refused to pass upon the question important here. He is now contending that the court did pass on it, and that our decision is contrary to the decision in the Krobitzsch ease on the same point.

At the oral argument counsel admitted that at no time before this court until the petition for rehearing was it contended that the case was tried on the theory that the agreement was one of purchase, and that, in fact, at all times it was agreed that the nature of the agreement was one of the basic points at issue. Also he contended that the pleadings in our case admit the agreement to be one of purchase and sale. This contention is based on the fact that in the answer to plaintiff’s complaint Middleton alleged that he held an agreement of purchase, which allegation he contends Krobitzschs did not deny. However, the Krobitzschs filed a separate answer to the complaint, and we know of no requirement that defendants answering separately must formally deny matter set up in the other defendant’s answer to the complaint. Moreover, Krobitzschs’ counsel assert that no service of the Middleton answer was made on the Krobitzschs or their counsel.

As this matter was an issue in the lower court, even though, as Middleton contends, presented belatedly, after the evidence was in, we see no good reason for complying with his request and sending the case back to the trial court for evidence concerning the character of the agreement, nor do we see any good reason for changing our previous opinion in this matter.

The petition to make additional findings is denied, and the judgment is affirmed.

Peters, P. J., and Ward, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied May 5, 1949.