(dissenting) — I cannot concur in the views expressed by the majority. It seems to me that the majority opinion wholly loses sight of the real contention of appellants. As I read the record, the contentions of the appellants, numbered in the majority opinion from 1 to 6, inclusive, in the main are directed to their principal contention that the copartnership contract was superseded by the corporate contract, and that all moneys due for the hauling of logs were due and owing from the corporation and not from the partnership. Manifestly, if the trial court had permitted appellants to prove that a new contract was made with the corporation under which the moneys here sought to be recovered were earned, that evidence would go beyond the question of future profits, and would, if established, have justified a verdict for the respondents. It would not be necessary that, by the terms of the new contract, the old contract was specifically abrogated, because, if respondents contracted with the corporation and did the hauling under that contract, then the prior contract with the copartnership might be found to be abrogated without an express agreement to that effect.
These observations, in my judgment, apply equally to the comment by the trial court upon the facts in the presence of the jury, the instructions relative to an alleged admission of the payment by appellants of $188.50 for the hauling of manufactured lumber, the requested instruction touching the rights of the parties under the claimed new contract, and the curtailing of cross-examination. Each of these matters, in my opinion, had a substantial bearing upon the question of whether or not the $450 was earned under the contract with appellants as copartners, or under the contract with the corporation which succeeded the copartnership.
For these reasons I dissent.