I dissent from the holding that the supplemental charge regarding the writing was correct.
The evidence of a conditional undertaking was not in the case as a ground of recovery, but because the witness Gordon failed to come up to the expectations of the plaintiffs. The shortage was one which left the contract testified to different in nature from the one claimed — a contract outside the pleadings and the theory of the trial. The only contract in issue was that shown by Gordon’s declarations testified to by Taplin, and the court’s reference is to that contract as against any contract touching future deliveries which the defendant claimed the writing referred to. The terms of the writing had no tendency to show a sale to Harris or an acknowledgement of one, either alone or in connection with other facts which the evidence tended to establish. The circumstance of giving it might, in connection with other possible findings, have had that tendency. But the charge as corrected still makes the writing itself evidence tending to establish a ratification of the contract sued upon, which in connection with other facts not designated would amount tó a ratification.
I am authorized to say that the Chief Justice agrees ivith me in this.