On petition por a rehearing.
Biddle, J.In stating the complaint in the above opinion, when first delivered, we included matter which both parties agree had been struck out as surplusage.
*409A motion to strike out parts of the complaint had been made below, but what parts nowhere appears in the record; besides, the record shows us that the motion-was withdrawn, and does not show us what ruling, if any, -was had upon it, nor what exception, if any, was taken to the ruling. "We did not suppose, therefore, that any part of the complaint had been struck out. But the absence of -what was struck out does not seem to us to affect the questiou decided in the least. It was -wholly immaterial matter. As the complaint now' stands, it sets out the contract counted upon, dated July 22d, 1876, and the averments in reference to the contract dated March 19th, 1866, also the provisional contract, made August 2d, 1878. The complaint also avers the performance of the contract of July 22d, 1876, on the part of plaintiff, and assigns the breaches on the part of the defendant by denying its validity and refusing payment under its terms, and shows the agreed statement of facts as to the amount of damages to be adjudged in the event that the contract is upheld. This presents the question of the validity or invalidity of the contract of July 22d, 1876, which is the sole question in the case, and the only one, as we understand the counsel on both sides, which they desire to have settled.
For the purpose of correcting the mistake of including immaterial matter in the complaint, which can not affect the case, it does not seem to us that a rehearing is necessary. The correction has already been made. There can be no doubt, we think, that the complaint, as it now stands, is sufficient, if the contract declared on is valid.
As to the validity of the contract, the question has been fully considered. We undei’staud the case was elaborately-argued in the court below. The opinion rendered there by Holman, J., is able and exhaustive. In this court, the counsel diligently collected the authorities touching the question involved, and in their oral arguments discussed *410them thoroughly. We think we are as well advised in the case as it is possible to he. With all these advantages before us, and upon long and careful deliberation, we are entirely satisfied with the .opinion delivered, as it now stands.
The petition for a rehearing is overruled.