¶1 On Petition eor Behearing
¶2 (4 P. (2d) 322)
¶3 A petition for a rehearing, presented by the appellant Swirsky, and accompanied by a very able brief, argues that we were unwarranted in affirming the decree of the circuit court against the petitioner. The brief convinces us that our decision errs in its statement that Swirsky attended the meeting of the board of directors of September 3, 1926. Our misconception of this fact, however, did not play an important part in the formation of our conclusion. Mr. Herman, Swirsky’s son-in-law, and Mrs. Herman, his daughter, attended that meeting, as well as Mr. Cohen, who, as we have stated in our previous decision, was the attorney employed by Swirsky and the Weinstein brothers to do all things necessary in the creation of the corporation. Before the meeting of the board of directors Swirsky had conferred with *608 Cohen upon more than one occasion. Herman had cooperated with Swirsky in the negotiations which preceded the purchase of Harris’s fixtures and lease. In fact, the bill of sale for the fixtures and the assignment of the lease were taken in the name of Herman, although Swirsky had paid the purchase price. It thus appears that the minutes were written by an attorney who represented Swirsky and received the approving signature of his daughter in the presence of his son-in-law. The sole reason which prompted Swirsky to undertake this venture was to establish Herman in business. These being the facts, we still remain satisfied that the minutes were receivable in evidence and that their, recitals were chargeable against Swirsky.
¶4 The petition also expresses a belief that we attached too much importance to the admission contained in the answer wherein the defendant (including Swirsky) admitted that the subscriptions of Cohen and of Bernstein were made pursuant to instructions received from all of the defendants. The brief accompanying the petition argues that the admission was an inadvertent one and directs attention to what the brief terms “a stipulation” that the stock subscriptions, made by Bernstein and Cohen, were on behalf of the Weinstein brothers. An examination of the record fails to convince us that the colloquy which passed between the attorneys amounted to a stipulation. We believe that the attorneys were doing nothing more than reviewing the pleadings. If this colloquy had been deemed by them at that time as amounting to a stipulation of the character now maintained by Swirsky it would have relieved him of all liability. And it would seem strange that an order of dismissal had not been sought in favor of Swirsky at once. However, it was not pri *609 marily the admission in the answer but the proof revealing the nature of the transaction which persuaded us to our conclusion. We felt satisfied, and so remain, that the purchase of Harris’s business and the formation of the corporation were the acts of Swirsky as well as of the Weinstein brothers. We quote from the words of the attorneys who represented Swirsky, as well as the Weinstein brothers, in the circuit court: “This case was tried by us in the lower court as representing all of the defendants. …' * The case was tried by us in good faith in the lower court on the theory that both Mr. Swirsky and Weinstein brothers were exactly on the same footing. Consequently we were not able to present his contention for him on this appeal.”
¶5 It is next argued that the testimony of Mr. Cohen was not admissible in evidence against Swirsky. When the manuscript containing Cohen’s testimony was offered in the circuit court the specific objection now urged against it was not voiced. But even if Cohen’s testimony were stricken from the record enough would remain capable of producing conviction in our minds that the subscriptions aforementioned were made on behalf of Swirsky as well as of the other parties.
¶6 The above being our conclusions, it follows that the petition for rehearing must be denied.