ON REHEARING.
JOHNSON, J.We allowed a rehearing in this case thinking there was plausibility in the argument of counsel for plaintiffs that some immaterial matters had been made the subject of an evidentiary controversy betwe.en the parties, but a further examination and analysis of the evidence convinces us we were accurate in our statement that “the only contradictory evidence in the case was upon material matters and, therefore the omission of the adjective ‘material’ from the instruction on the credibility of the witnesses should be regarded as a harmless error.” The ultimate issue in the case was whether or not plaintiffs, who enjoyed superior advantages over defendant with reference to knowledge of the market value of the stock in New York falsely represented the value to be less than it was, intending that' defendant should rely and act upon such representation and thereby inducing defendant to sell the stock at the represented value, which was $70 per share, when, in truth and in fact, as plaintiffs well knew, it was worth $5 per share more. The broker friend of defendant in New York testified to a conversation he had with one of the plaintiffs in which the latter offered him $75 per share for the stock, with knowledge that it belonged to defendant, and the evidence of defendant further tends to show that immediately after this conversation plaintiffs called defendant by telephone and made the false representations. This conversation is denied by plaintiffs and their coun*83sel suggest in the motion for a rehearing that the issue ■thus raised “did not necessarily go to the merits of the case.” ¥e think it did and that it was not only material to the main issue but was of the most vital importance.
In view of the vigorous attack in the motion upon the approval, in .the foregoing opinion, of defendant’s instruction No. 2, we think it not amiss to say that the hypothesis it submits has the support of substantial evidence and by no means should be regarded as subject to the criticism of being a comment on the evidence.
¥e readopt our former opinion and affirm the judgment.
All concur.