
    Submitted on plaintiffs’ petition for rehearing filed November 10,
    former opinion filed October 21,
    petition for rehearing denied November 23, 1976
    MARSHALL et ux, Respondents, v. HARRIS, Appellant.
    
    556 P2d 1358
    C. Martee Kennedy, Bend, and Panner, Johnson, Marceau, Kamopp & Kennedy, Bend, for the petition.
    No appearance contra.
    TONGUE, J.
   TONGUE, J.

Plaintiffs have petitioned for rehearing on the ground, among others, that there was evidence from which the trial court, as trier of the facts, could have found that the transaction in this case was exempt either as an "isolated transaction” under ORS 59.035(2) or as a "pre-business activity” under ORS 59.035(11); that the court, by its opinion, "did not decide the issue of exemptions as a matter of law,” but only that "under the evidence in this case the trier of the facts could have found” that the transactions were exempt as "isolated transactions”; that "the trial court could have found to the contrary,” and that the case should thus be remanded to it "for determination of the factual issue of exemptions.”

In our previous opinion we said that:

"* * * [W]e have examined the evidence offered by plaintiffs in support of their claims of exemption and find that they failed to sustain their burden of proof to establish either exemption.”

It is true, as pointed out by plaintiff, that in discussing the "isolated transaction” exemption, we said that the trier of the facts "could have found” the facts to be such as not to qualify for that exemption. We should have said, consistent with that previous statement, that under the evidence as set forth in the opinion, and as a matter of law under our previous decisions, the trier of the facts could not have properly found that this transaction was exempt either as an "isolated transaction” or as a "pre-business activity.” We have again reviewed the evidence and reach that same conclusion.

The petition for rehearing is denied.  