I. It is fairly inferable, from the record in this case, that the written admission made by the defendant’s attorney with reference to the accounts of B. F. Heiny & Company and Heiny & Hooper was acted on by the plaintiff, and hence it belongs to that class of agreements entered into in the course of judicial proceedings which are styled contractual, and, of consequence, its binding force could not be impaired by an attempt to withdraw the admis*313sion so made on the part of the defendant during the trial. 2 Whart. on Evid., sect. 1184; Franklin v. National Insurance Co., 33 Mo. 491. The parol evidence offered by the defendant not being competent for this purpose, in looking at the language of the instrument, we discover no such ambiguity in its terms as justified a resort to parol proof to show the intention of the parties to it. The instrument speaks for itself, and the action of the trial court in admitting parol proof to control or explain its meaning was erroneous. But whether this was error of a nature necessitating a reversal must depend upon the further question of the proper construction of the admission with a view of determining its scope. If the defendant by it admitted everything the plaintiff was bound to prove, to entitle him to recover on the counts to which it applied, the instructions given by the court in the first instance were correct and should not have been withdrawn. If, on the contrary, the ad. mission only amounted to a waiver of formal proof of the correctness of the accounts referred to, leaving the question of the defendant’s liability for them to be determined from other facts to be proved, the instruction ultimately given by the court gave the plaintiff the full benefit of the admission. It is necessary, therefore, to construe the instrument. It may be observed, in the outset, that the matter of passing on agreements and concessions made in the preparation or during the trial of causes is one of considerable importance. Where there are many facts which, from the state of the pleadings, are presented as controverted, but which are so controverted only in form and not in fact, the practice of agreeing on or admitting those facts which are merely formally in issue is constantly resorted to. This practice is deserving the encouragement of the courts. It conduces to simplify the issues to be tried, by narrowing the litigation to the precise matters in controversy ; it saves time and expense and avoids delay and surprise. Lewis *314v. Sumner, 13 Met. 269, 272. When such an agreement or admission is presented for judicial construction, it behooves the court to endeavor to effectuate the intention of the parties, as that intention is ascertainable in the light of the surrounding circumstances and by the application of the rules governing the construction of such instruments. On the one hand, every consideration of good faith demands that a party should be held to the full legal scope of an admission voluntarily made by him. If he has negligently stipulated or admitted to his prejudice, not being induced to do so by the fraud or other wrong of his adversary, the court is not warranted, for that reason, to disregard the act. On the other hand, the court should be careful not to “stick in the bark” and strain the language of an admission so as to lead to a construction which bears the impress of improbability or unreasonableness. The language would be unmistakably clear to require such a result. Applying these rules here, how stands the case ? Suit had been brought on sixteen different accounts which had accrued in favor of as many different parties, ranging from $15.08 to $249.99 in amount. Except as to the additional and special aspect worn by one of them, the issues of fact were substantially the same; The defendant was sought to be held liable for all of them upon the same general grounds of partnership and agency.- He denied his liability for any of them. His answer was a general denial. Under the case thus presented, the plaintiff, to entitle himself to recover, was put to proof of three facts on each of the counts of the petition: (1) that the items of the account therein sued on were sold and delivered, and that the prices charged for them were agreed on, or were reasonable; (2) that the account was unpaid; ( 3) that the defendant was liable for the account, either as purchaser of the goods, or1 on the theory of partnership, agency, or estoppel, or on other grounds entailing: a legal liability therefor. As to the first two matters, all the accounts stood on the same footing, and these facts *315were necessary to be proved as to each of them in turn. In the light of experience in actions on accounts, such proof may well be regarded as formal. Nevertheless, the making of this proof is oftentimes attended with much inconvenience and expense. This case had gone to another county by change of venue. The two accounts covered by the admission aggregated $37.33. To send witnesses to prove their correctness involved expense, as well as loss of time, disproportionate to the amount at stake. That it should have been desired to avoid these was natural. In accordance with the general practice, under such circumstances, this desire was met by a stipulation. That the admission thus made covers two of the facts which the plaintiff was under a burden to prove is clear enough. But did it not do more than that % We learn from the record that the vital point in issue was-upon the third fact, above stated, as essential to establishing the defendant’s liability. It was upon this issue the evidence conflicted, and to it the instructions of the court were directed. If it had been intended to admit this fact, also, is it not reasonable to suppose that it would have been so stated in terms %
No surrounding circumstances are brought to our attention which place these two accounts in a different light from that in which the others sued on stand. In the absence of such difference, and of specific language clearly disclosing an intention to admit any fact beyond those which were merely matters of formal proof, we cannot hold that the general terms which were employed require a construction of the admission giving' it the broad scope claimed for it. It is insisted that the words, “ stand proved,” necessarily carry with them the idea that every fact essential to a recovery by the plaintiff was intended to be admitted. The meaning of these words, as applied to the subject-matter of the admission, does not warrant this implication. The admission does not extend to the cause of action stated in certain counts of the petition, but refers in terms to “the *316accounts of B. F. Heiny & Co., and Heiny & Hooper.” The only “accounts ” in favor of these parties, involved in this cause, appear to have been made out against “E. L. Spotts,” as the debtor. The only one of the accounts sued on, which the appellant’s abstract states to have been made out against the defendant, was the one in favor of Meyer & Kespohl. The accounts in question being against E. L. Spotts, if shown or admitted to be ever so “correct,” and if they “stand proved” ever so conclusively, are not thereby made the debts of the defendant. Proof is still wanting that he is for some reason responsible for the accounts against Spotts. The admission does not supply this proof in terms, and we find no language requiring us to add the lacking element by construction. On the contrary, the admission itself recites that it is made “for the purpose of the trial” of the cause. This clearly indicates that a trial was, in the contemplation of the parties, yet to be had, notwithstanding the admission. A trial implies that some issue still remains to be decided. Our statute defines a trial, to be “the judicial examination of the issues between the parties, whether they be issues of law or of fact.” Rev. Stat., sect. 3599. If the admission in question is held to be one of the defendant’s liability in toto, and of every fact necessary to fix that liability, in short, to amount to a consent that judgment may be rendered against him for the amount of the accounts referred to in it, what becomes of the very purpose for which the parties themselves have stated that it was made ? Under the construction contended for, there would be no further occasion for “a trial” as to those accounts. The purpose for which an act is done is a very satisfactory test by which to ascertain the indention of the parties. So, applying the “purpose” here expressed, to the subject-matter of the admission under consideration, we find a clear intent that there should be a trial of some remaining issue in the case. This issue was the vital one as to the defendant’s lia*317bility for an account which stood proved against Spotts, the only party who, upon its face, was the debtor. This-issue was not concluded or covered by the admission read.
II. Nor do we think that defendant’s fifth instruction justifies the application of the rule announced in Sullivan v. Railroad (88 Mo. 169), by the want of' its qualification covering or excepting the case made on-the Davis account, which was presented to the jury in' the eleventh instruction of the plaintiff’s series. The-defendant’s instruction is general, and refers to the case- and the sixteen accounts in issue as a whole, while the one given with reference to the additional element present as to the Davis account, is special. It singles out the third count of the petition as standing, in the respect referred to, upon an exceptional ground. By bringing this exceptional ground, to the special attention of the jury, any omission of a qualification to the same effect from the defendant’s instruction in question was fully supplied. We do not think the Sullivan case should be extended to such a state of instructions as here presented. Even if the Sullivan case can be said to apply here, we think the instruction itself contains the very provision which the rule, in that case, would require to be inserted. The jury are told that the doctrine of the plaintiff’s instruction governs the Davis-account, and that they should find for the' plaintiff as to it, “even though they should further believe that Baylor had no interest in the hotel.” The other instructions indicate that the phrase, “interest in* the-hotel,” was used in this case as conveying the meaning* that the defendant was either a partner in the business of managing said hotel, or. was himself the proprietor, acting in the matter through Spotts as his agent.
III. There was no evidence upon which plaintiff was-entitled to recover under the rule that one who holds himself out as a partner is liable as such. That rule can be applied only when two elements concur: first,. *318where the holding out was by the party himself, or with his consent; and, second, where the party invoking the rule, had knowledge of such holding out at the time the goods sued for were sold, and was induced to make such sale on the faith of the same. The liability of the party sought to be charged in such a case depends upon the usual principles governing and establishing an estoppel by conduct. Rimel v. Hays, 83 Mo. 200, 208, and cas. cit.; 1 Smith’s Lead. Cas. [8 Am. Ed.] 1337. There was no proof in this case that the plaintiff, or any one of his assignors, knew of the alleged holding out when the account in his favor accrued, or was in anywise influenced or misled by the conduct of the defendant in the premises. The extent of the evidence offered was that the defendant held himself out as a partner. One of the creditors stated that he had so held himself out to him. This was insufficient unless supplemented by proof that this holding out was connected with the debt sued on in such a manner, and at such a time, that the defendant was estopped from subsequently denying his liability for it. Besides, the error now complained of by the plaintiff runs through his own instructions. He tried the case on the theory of an actual or true partnership, and not on that of a quasi partnership based on estoppel by conduct. He cannot, of course, be permitted to thus shift his ground in this court.
IV. While it is true, that in form, the account of Meyer & Kespohl was made out against the defendant, yet, in view of the fact that the evidence offered to support that account showed that it was so made out without the knowledge or consent of the defendant, and that he denied any connection with the goods charged for, promptly upon their arrival at Kirksville, the account must be regarded as occupying the same position as the others sued on, and as based on a sale to Spotts, in respect to the rule declared in the first instruction given for the defendant. The use of such terms as prima facie and the like in instructions to juries is not to be *319commended, and cases might arise in which the employment of such terms could be said to have been misleading. In this case, however, there is no ground for the belief that the plaintiff was in any wise prejudiced, or the jury misled by the use made. The instruction in question Avas nothing more than a declaration of a well-settled rule, applicable to the issues on trial, that the burden of proving the defendant’s liability for the accounts sued on was on the plaintiff.
There being no error materially affecting the merits of the case, the judgment is affirmed.
Hall, J., concurs. Philips, P. J., dissents in a separate opinion.SEPARATE OPINION.
Philips, P. J.I non-concur in so much of the foregoing opinion as holds that there was no error in the action of the trial court respecting the stipulation of the defendant concerning the accounts of Heiny & Company, and Heiny & Hooper. It was not only an admission that the accounts were correct .as to the items and such formal matters, but it is more, that the accounts stand proved. Proved against whom ? Unquestionably against Baylor; for it says “ in the above cause.”
It is too narrow, in my view, to say that the purpose was merely to avoid the expense of the claimants going to Macon City to prove the items of the accounts. It must be borne in mind that the object of assigning the respective accounts to Hannah was to avoid multiplicity of suits by embracing them all in one action. The assignors continued to be the real parties in interest. As was well known by all concerned, the real controversy in this case was as to Baylor’s liability on these contracts of purchase and sale. Why, if the object was merely to save costs and trouble in going to court at Macon City, would Heiny et al. have stipulated only as to the correctness of the accounts, about which, as the sequel shows, there was really no controversy, and stay at home, leaving the real controversy, as to them, *320without their evidence to support it ? How were they to prove Baylor’s liability without evidence on that issue i None other was offered by them except the stipulation, and simply because they understood the stipulation to mean exactly what it said, that not only was the correctness of the account admitted, but that it stood “proved in the cause,” which cause was against Baylor. To thus lure them to remain away from court, and after the trial had really ended, so far as the evidence was concerned, to spring such an issue was a snare and a cheat. It is no answer to this to say, that the language, “for the purpose of this trial,” implies that there was yet something to be tried between the parties. The meaning and whole import of this language, in my opinion, is, simply, that this admission is for the purpose of the trial to come off herein, and not for any other purpose or occasion ; just as it is often stipulated in respect of what a witness would testify if present, it is said, for the purpose of this trial, it is agreed that the witness, if present, would swear so and so. It implies that the party agreeing to admit it does so in the pending trial, but not for any other purpose.
If any inference is to be drawn from the smallness of these two particular accounts, it would rather be that, as they did not amount to much, to avoid litigating as to these, and to escape the force and effect of any special testimony by the Heinys, the defendant preferred, for the purpose of the trial herein, to recognize their claims as “proved.” But what is most conclusive to my mind against the theory of the majority opinion, that the stipulation applies only to the correctness of the items of the account, or, in other words, that the items therein were sold, as of the dates and at the prices named, and the like, is, that this was fully covered by the term, “ correct,” and that the further language can only apply to the real issue in the case — that they were “proved” against the defendant. This, I think, is the clear import of the stipulation.