ON APPLICATION FOR REHEARING
Rendered July, 1932
BY THE COURTUnder date of July 25th we are in receipt of what purports to be an application for rehearing in the above entitled case. Of course, the time has long since passed when this application could, under our rules, be taken up by the court.
However, we will informally consider the two questions presented: Cl) “The decision of April 13th refers to an amended petition time after time, when there was no amended petition in the record.” It is apparent from the decision that there was no misconception of the subject matter of the pleading, to which all discussion in the opinion was directed. Therefore, though the petition may have been improperly designated “amended petition” it is difficult to perceive how any prejudice could result to the plaintiff in error by the inadvertence.
(2) “The decision is in apparent conflict with the case of Emler v Ferne, 23 Oh Ap, 218 (5 Abs 327), Kex Mfg. Co. v PluGum Co., 28 Oh Ap, 514, (6 Abs 514).”
We have examined these cases with care and do not And that they are inconsistent or in conflict with the opinion in the instant case for reasons appearing in the opinion.
The test on demurrer was to what extent, if at all, the petition stated a cause of action and responsive thereto how far the judgment could be made to operate. We held that to the extent to which we affirmed the original judgment entry, the contract was enforcible. We gave painstaking attention to the legal questions presented, discussed and considered them at length.
We And nothing in the application which would require either re-hearing or certificate of conflict to the Supreme Court of Ohio.
ALLREAD, PJ, HORNBECK and KUNKLE, JJ, concur.