His Honor,

rendered the opinion and decree of the Court as follows:

Upon the rehearing, counsel for appellant contends that the question of whether or not the deposit which accompanied the contract .of purchase constituted “earnest money, ’ ’ must be determined upon a consideration of all of the fapts, and that in the present instance the facts disclosed that the deposit was intended as a part payment of the purchase price and not as “earnest money.”

We are aware of the recent decision, Nosacka vs. McKenzie, 127 La., 1063, which holds that the question of whether or not a deposit by a purchaser is “earnest money,” is one of fact dependent upon the intention of the parties to be deduced from a consideration of all the facts surrounding their agreement; but the facts in this record show beyond question that the monev was de*159posited as “earnest money,” and was treated as such, by all parties in interest, including appellant.

"We are satisfied that onr original decree is corerct, and it is accordingly reinstated and made the judgment of the Court.

Former decree reinstated.