ON PETITION FOR REHEARING Appellant has filed a petition for rehearing in which it calls to our attention the case of Waymire v. Waymire (1894),141 Ind. 164, 40 N.E. 523, and insists that under this decision appellees' complaint is demurrable for failing to allege that possession was taken with the consent of the seller or pursuant to the parol contract.
We think the complaint taken as a whole sufficiently shows that the possession was taken with the consent of the seller and pursuant to the parol contract. But even if it is defective 3. in this particular the overruling of appellant's demurrer on that ground would not be cause for reversal in this case. The evidence introduced at the trial sufficiently showed that possession was so taken and an examination of the entire record shows that the merits of the cause have been fairly determined and that the ruling on the demurrer did not affect the substantial rights of appellant.
It is provided by statute that "no objection taken by demurrer and overruled shall be sufficient to reverse the judgment, if it appears from the whole record that *Page 156 the merits of the cause have been fairly determined." § 2-1013, Burns' 1933.
Petition for rehearing denied.
NOTE. — Reported in 75 N.E.2d 197.