PER CURIAM. Wasson had a contract with the Morris Coal Company for the sale and delivery to him of certain amounts of coal. O’Gara obtained from the Morris Company an option to purchase its mine. In the option there was a provision that existing contracts between the Morris Company and its customers should be filled by O’Gara or his assigns. O’Gara elected to purchase for the O’Gara Coal Company. The deed to the O’Gara Company contained no assumption of the Wasson contract, nor did the O’Gara Company execute any separate instrument of assumption.

Wasson’s action being for damages on account of the O’Gara Company’s refusal to carry out the Morris Company’s contract, the burden of proving the assumption was on him. The option was purely executory, and any terms not embodied in the final transaction must be deemed waived.

To show that his contract was included Wasson proved that his contract, with a written assignment indorsed thereon by the Morris Company to the O’Gara Company, was left by the Morris Company together with the deed, abstracts, and other contracts in the office of the attorney who acted for the O’Gara Company at the time the transaction was closed. The trial court treated this as prima facie evidence of an assumption. Was-son contends that it was irrebuttable.

Inasmuch as the Wasson contract may have been among the other papers by oversight or fraud, the court properly permitted the O’Gara Company to prove that it explicitly rejected the Wasson contract and notified the Morris Company that the purchase would not be made if the Wasson contract was included. On Wasson’s behalf evidence in rebuttal of the O’Gara Company’s position was introduced; and the dispute of fact was submitted to the jury under instructions to which no exceptions were taken. We find no error in the record, and the judgment is accordingly affirmed.. ■