¶1ON PETITION TO REHEAR.
¶2delivered the opinion of the court.
¶3The point of the petition for rehearing is, that the fact that the plaintiff below read to the jury the note with the words in brackets, and said that it was the note given to him when he let the party have the money, conclusively shows that these words were a part of the note, and, therefore, it is argued, the note must be treated as illegal upon its face, or, at least, that a verdict to the contrary is without evidence to sustain it. But both parties having treated the words in brackets, although read to the jury, as no part of the contract on the trial below, the decision, in the *305opinion delivered, is that the objection could not be made for the first time in this court. It is begging-the question to say that certain testimony is conclusive of a point never made, and, of course, not in issue. What might have been shown if the point had been made, we do not know. And it cannot be said that there was no evidence to sustain the verdict, upon the supposition that the jury actually passed upon the point, for the body of the note only required legal interest, and the failure of the defendant to insist that the words in brackets were a part of the contract, was the very' best evidence that they were not, and left the body of the note as the only evidence to be looked to.
¶4Petition dismissed.