
    Graham and Others v. Henderson.
    
      •Év-ibencb.—Exclusion of.—Bill of Exceptions.—No question in relation to the exclusion of evidence can be presented to the Supreme Court without a bill of exceptions showing an offer to introduce the excluded evidence.
    
      ^K^S&t-^-Dcclarations of Co-defendanti—In a suit against several persons as partners or joint contractors, declarations -made by one defendant -to another, in the -absence of the plaintiff, as to the terms of the contract, are inadmissible in evidence for the defendants.
    Same.—Partnership.—Where several persons are sued as partners, and -there is &11 answer of general denial, the ^evidence must show -that 'the defendants weré partners.
    
      Same.—Joint Contractors.—Where several -are sued -as joint contractors, and the evidence shows that some are not liable, it is a failure of proof, and not a mere variance, and a finding against all is erroneous.
    Practice.—Judgment:—The provisions of -the code concerning -the rendition of judgment in favor of sortie and against'others of several defendants joined iu an action, applies only where there is -a finding or verdict in favor of some, and against 'others, of -the defendants, and not Where there is a finding of Verdict against all of them.
    
      Same?—Motion for -¿lew Trials-Where -the -evidence -does not justify a finding against one of several defendants, but'does against the others, and there is k finding against all, a motion fof a new trial by all -the defendants, alleging that the finding is not sustained by the evidence, is sufficiently specific.
    APPEAL-from the Johnson Common Pleas.
   Downey, C. J.

Hendersofl sued -Archibald C. Graham-, •Felix W. Graham, and James P-. Graham, The complaint is in two paragraphs. The first paragraph alleges that the de*fendants are partners, and states that they sold to the plain*tiff twelve hundred bushels of wheat to be 'delivered at his mill in Greenwood, &c., on of before the 19th day of June, 1868, fof which the plaintiff was to pay and did pay two dollars per busheb; that the defendants were to pay the plaintiff interest on said money until the wheat should be delivered 5 that the defendants delivered one thousand an'd •ninety-nine bushels and fifty-three pounds of said wheat, and have failed and refused to deliver the residue.

In the second paragraph it is stated that the defendants sold to the plaintiff a like quantity of wheat at, &c., on o'r before the day aforesaid, for which the plaintiff agreed to pay the market price at Greenwood, at such time as defendants might call for a' settlement; that the plaintiff at the time of making the said contract, advanced to said defendants twenty-four hundred dollars, on which they agreed to pay interest; that defendants delivered one thousand and ninety-nine bushéls and fifty-three pounds of wheat on said contract, and have failed and refused to deliver any more; and that the defendants called for a settlement on the 19th day of June, 1868, when the price of wheat was two dollars per bushel, which price they agreed to take, and pay him the balance of the amount which he had advanced and the interest, which they have failed to do.

To the complaint the defendants answered by a general. denial, and secondly, that the defendants sold to the plaintiff eleven hundred bushels of wheat, to be delivered at his mill, at, &c., on or before, &c., he agreeing to pay them at the market price at Greenwood in the spring of 1868; that they delivered to him eleven hundred bushels of wheat; that the market price in the spring of 1868 was two dollars and forty cents per bushel; that besides the”twenty-four hundred dollars paid them there was yet due them two hundred and forty dollars and interest thereon; wherefore, &c. There was a reply by general denial to the second paragraph of the answer. The cause was then, tried by the court, and there was a 'finding for the plaintiff for two hundred and ninety-six dollars and forty-eight cents. Motion for a new trial overruled, and judgment on the- finding.

The motion for a hew trial was for the reasons that the finding of the court was not sustained by sufficient evidence, was contrary to law, and because of the improper exclusion of evidence by the court.

The only error assigned is the refusal of the court to grant a new trial.

The first point made with reference to the exclusion of evidence is that the court erred in refusing to allow the defendants to prove by the defendant Felix W. Graham, that he communicated to the defendant Archibald C. Graham the terms of the contract made by the plaintiff and said Felix W. Graham, on which the suit is brought. It is enough to say that the bill of exceptions does not show any offer of such evidence.

The second point relating to the exclusion of evidence is, that the court erred in refusing to allow Archibald C. Graham to testify as to his understanding of the terms of the contract sued on, &c. The bill of exceptions states. that the offer was to prove that “ he had been informed by the defendant Felix W. Graham,” &c. If it was competent for the defendants to prove the understanding of one of them as to the terms of the contract, that proof could not be made by proving what one of his co-defendants had said about it, in the absence of the plaintiff

Next as to the sufficiency of the evidence. The first paragraph of the complaint charges the defendants as partners. The second charges them as joint contractors. The general denial required the plaintiff to prove that all the defendants were liable under the first paragraph as partners, and under the second paragraph as joint contractors. There was no evidence whatever that the defendants were partners; without this evidence the case was not made out under the first paragraph. Tomlinson v. Collett, 3 Blackf. 436; Dickensheets v. Kaufman, 28 Ind. 251.

The evidence shows the making of two contracts with reference to the sale of wheat, one by Felix W. Graham, one by Archibald C. Graham, each separately. James P. Graham is not shown to have been in any way concerned or ihterested in either of the contracts; and therefore his liability is not shown.

Counsel for the appellee insist that this is merely, a variance, and not such a defect of evidence as will justify a reversal of the judgment; that as the code authorizes judgment against all or any of the defendants, whether the contract be joint or several, as held in Hubbell v. Woolf, 15 Ind. 204 the attention of the court should have been spec-tally directed, by tbe motion for a new trial, to this point and that the general statement in the reasons for a new trial, that the evidence was not sufficient to sustain the finding; of the court, was not enough. We cannot agree-to this. It is only where the court or jury finds for some of the defendants and against others, that judgment can be so rendered.. Here there was a finding against all the defendants, and a. judgment in accordance with the finding. The-evidence, was-insufficient to justify this finding and judgment as to ©ne„if not as to two, of the defendants, and the reason for a new trial was sufficiently specific.

A. P. Oyler and D.. W. Howe,, for appellants.

«?. M. Overstreet and A. B. Hunter, for appellee.

The judgment is reversed, with costs, and the cause, remanded, with directions to grant a new trial.  