on petition for rehearing.
Corn, Chief Justice.In this case we sustained the decision of the court below in rendering a judgment for the defendant, assigning as •out-reason that, in any view of the several legal questions presented, the evidence of the plaintiffs did not entitle them to a judgment. Their counsel now urges that the court below was of the opinion and it was conceded by counsel for the defendant that the evidence introduced by plaintiffs was full ánd ample to make out their case, but that the court held that the contract of partnership relied on was void because not in writing; that, if there had been any intimation that the evidence was insufficient, much more and conclusive evidence was accessible and would have been introduced on behalf of plaintiffs, and that, therefore, the case should be sent back, in order that they may have an opportunity to try their case properly and make their proof.
There is reason in the proposition that where a party, by an erroneous ruling of the court, has been misled into trying, his case upon a false theory and has thereby been induced to omit the introduction of available evidence tó es*458tablish his right of recovery, there should be a new trial, upon the issues actually raised by the pleadings. But nothing of the kind appears from the record in this case, and we are necessarily bound by the record. It nowhere appears that the court found for the defendant upon the ground that the alleged contract was void under the statute of frauds, or that that defense was made in the court below. While the decisions are conflicting as to the proper method of presenting the defense of the statute, this court has decided, and it is the law that it must, in some way, be set up, or else it is deemed to be waived. (Williams-Hayward Shoe Co. v. Brooks, 9 Wyo., 433.)
The petition alleged that the partnership was entered upon pursuant to a parol agreement, and there was a demurrer upon the grounds of a defect of parties and that the petition did not state facts sufficient to constitute a cause of action. If it was attempted to take advantage of the defense of the statute by this demurrer, which does not appear, the decision of the court was against it, for the demurrer was overruled. The defense is not set up in the answer, but, instead, there is a specific denial of any agreement concerning the title or ownership of the lands. Neither was there any objection to the introduction of evidence upon the ground that the agreement was void because not in’ writing. And, finally, the court finds specifically that the defendant is the sole owner of the parcel of land standing of record in his name, and that the plaintiffs have no interest therein and there is no reference to the defense of the statute. Under these circumstances, we are not at liberty to go behind the record and accept the suggestion of counsel that the issue, which this court has deemed to be the controlling one in the case, is different from that tried in the District Court.
Counsel also calls attention to the fact that the plaintiffs, who, as he states, are personally known to some of the members of this court as people of high character and standing, testify positively that the lands in question were owned *459in partnership. And he complains that, under these circumstances, their testimony should be rejected as unworthy of belief, or insufficient to establish the point in controversy. It is familiar law that this court does not pass upon the character or credibility of witnesses. If it did, a majority at least of its members would, from personal knowledge, certify to the unimpeachable veracity and high character of the plaintiffs who testify in this case. But we do not conceive that the decision turns upon the honesty or credibility of these witnesses. They testify to their opinion or conclusion drawn from events and conversations reaching back over a period of more than twenty years. The other surviving partner testifies that he did not so understand the terms of the partnership, and there is strong evidence that the deceased partner did not so understand it. In if' all there is nothing inconsistent with the entire candor and good faith of all the parties in interest. It is merely another illustration of the endless misunderstandings which habitually arise out of verbal agreements, especially among members of the same family.
All of the other grounds upon which the application is based were sufficiently considered in the original opinion.
A rehearing will be denied.
Knight, J., and Potter, J., concur.