(after stating the facts as above). In the case ofChampion v. Wilson Co., 64 Ga. 191, Mr. Justice Jackson, in delivering the opinion of the court, said:
"Champion was not sued as a partner, but individually, and there could not be a legal recovery against him as a partner. It matters not that the others who were alleged to be his partners were bankrupt, and that the recovery would come out of him in any event. The plaintiffs must sue him, as he contracted with them, and recover accordingly. Booher v. Worrill,43 Ga. 587. The evidence on some of these points is conflicting — sufficiently so to entitle the parties to have the law fully and accurately given to the jury, and as, in our view, that has not been done on every *Page 410 controverted point in the very protracted and complicated case the record makes, the ends of justice require a new trial."
Under the record in this case, there was a question as to whether or not the alleged contract was with the plaintiff in error as an individual or a partnership. The instruction refused by the court covered this question, and should have been submitted to the jury.
The special interrogatory requested to be submitted to the jury by the plaintiff in error under section 4477, Wilson's Rev. Ann. St. Okla. 1903, should have been given; but in view of section 21, art. 7 (Bunn's Ed. § 194; Snyder's Ed. p. 223), of the Constitution of Oklahoma, providing that, "in all jury trials, the jury shall return a general verdict, but no law in force, nor any law hereafter enacted, shall require the court to direct the jury to make findings on particular questions of fact; but the court may, in its discretion, direct such special findings," being repugnant thereto, said section 4477, supra, was not extended to and did not remain in force in the state of Oklahoma by virtue of section 2 of the Schedule to the Constitution (Arie v. State, ante, p. 166, 100 P. 23), and consequently on another trial it would be within the discretion of the court as to whether or not such special interrogatory should be submitted to the jury.
In view of the fact that this case must be remanded for a new trial, it is not necessary to determine whether or not the evidence in the record supports the verdict, as it is apparent that the uncertainty of the record can be made clear and definite on another trial.
The judgment of the lower court is accordingly reversed and remanded.
All the Justices concur. *Page 411