The judgment appealed from in this cause is based upon the judgment which was reversed and set aside in Tejas Development Company and E. V. Kennedy v. McGough Brothers et al., 5 Cir., 165 F.2d 276, and must fall with that judgment. This case is accordingly also reversed and remanded to the district court for such further proceedings as may appear to be proper.

Reversed and remanded.

On Petition for Rehearing.

We have not considered nor adjudged the merit of the claim for attorneys' fees which is the subject of this motion for rehearing. In reversing the judgment appealed from we have intended to leave this question open for further consideration in the district court, as a part of the whole controversy, on further proceedings.

Motion denied.