ON MOTION EOR RE-HEARING.
Per curiamI. The motion for re-hearing is mainly based on the proposition that notwithstanding the appellants failed to preserve for review any exceptions to-the giving or refusing of instructions by raising the objection in the motion for new trial, yet, although the evidence showed that plaintiff may have signed the note-as surety, he was a surety, holding an indemnity, whereby he became the real principal, and, therefore, he cannot sustain the motion for judgment as surety.
We gave no special consideration of this point in the opinion, because it was -a question of fact for the jury as to the capacity in which plaintiff executed the-note. There being evidence that he did sign it as surety for defendants, and not otherwise, in order to have any question of law arising on the proofs reviewed in this-court, it was indispensably necessary that defendants should have raised the same by instruction. Harrington v. Minor, 80 Mo. 270 ; Cunningham v. Snow, 82 Mo. 593. As no exception was taken to the giving or refusal of instructions in the motion for a new trial, they must be held, on appeal, to be waived.
II. Furthermore, among the instructions asked by the defendants, and given by the court is one expressly asserting that “the only issue in this case is, as to whether the defendants signed the note as surety for Schlicker.” If that was the only issue, as affirmed and admitted by defendants, to-wit, whether defendants signed the note in question as surety for plaintiff, with, what consistency and grace,, after they were beaten at *487the trial on their chosen field of contest, can they demand a reversal in this conrt on the ground that there was- another issue in the case, to-wit, that although the jury find the defendants signed as principals, and plaintiff as surety, yet as plaintiff held an indemnity this, in equity, converted him into a principal. A party will not thus be permitted to assume two positions as may better meet the contingencies of success, or defeat, where he has expressly laid down the gauge on one of them alone. He “must stand or fall in this court by the theory on which he tried and submitted his case in the court below.” Walker Owens, 79 Mo. 568.
III. Even if we could pass over, or around these legal obstacles to consider the merits of the position now assumed by appellants, that the evidence indisputably showed that plaintiff held an indemnity in contemplation of the rule of equity invoked, we are of opinion that the evidence is not so clear as to authorize this court to take the issue from the jury.
The plaintiff’s evidence tended to show that defendants borrowed the money, and asked him to sign as surety, which he did. Defendants now claim that the note was to be paid off out of moneys to be received on plaintiff s building contract with the school board. The evidence of plaintiff tended to show that Gordon got' hold of the. money on warrants from the school board ; and when plaintiff applied to defendant, Finke, to know why the note was not paid, he was told by Finke, with some abruptness, that’ it was none of his business, and that he need not concern himself about the matter. Plaintiff’s evidence rather tended to show that Gordon kept this money and had not paid it to anyone. Under this state of proof, a court of equity, no more .than a jury, would likely hold that defendants could protect themselves against plaintiff’s demand on the ground that plaintiff held an indemnity while defendants themselves held the money arising from the indemnity.
The defendants have had two trials on the facts before a jury, and lost both times. It would require some *488temerity for this court now to usurp the functions of the jury, and give the defendants a judgment on the disputed facts.
The motion is denied.