There is much discussion in the argument on the sufficiency of the petition. In view of our former holding in the case of Pinchefsky vs Goldstone, 170 NE 657, we *682would be constrained to hold that the petition in this case, even as amended, is insufficient. There is, however, a more apparent ground for sustaining the judgment of the lower court. As above stated the action of the court followed statement of counsel. The statement of counsel is not contained in the bill of exceptions. We are not permitted to speculate or guess or to accept oral declarations as to what the statement of counsel consisted of. We must, of course, assume that there was something in the statement of counsel by way of an admission which undermined the plaintiff’s case. We are not therefore confined to a consideration of the sufficiency of the petition, since the .action of the trial court would be justified on the single ground that the statement of counsel as to what he expected to prove by way of substantiating the allegations of his petition, destroyed the plaintiff's cause of action.
In view of the state of the record, the judgemnt of the common pleas court will be affirmed.