*12On Petition for Rehearing.
PER CURIAM.[2] By their petition for rehearing, the plaintiffs complain that this court disposed of the writ of error and reversed the judgment in this case on a matter not raised by assignment of error based on any exception in the record. No other error is charged.
It appeared at the argument that the crux of the case was Clarke’s authority to ratify the unauthorized act of the defendant’s servant and thereby make the defendant liable for his negligence.
Though plainly appearing in the record, this question was not raised by assignment of error, nor was it discussed in the briefs. We therefore asked for supplemental briefs on this one question. The briefs, when filed, as well as the record, when read, disclosed veiy certainly that this matter had not been submitted to the jury. This omission we thought constituted error, which, though not assigned, we noticed under rule 11 of this court (224 Fed. vii, 137 C. C. A. vii). P. & R. Ry. Co. v. Marland, 239 Fed. 1, 152 C. C. A. 51.
.The petition is dismissed.