on re-hearing —The argument at the'rehearing properly suggests two questions for our determination. These are—First, whether the writing purporting to be a dissolution agreement was properly excluded from tbe consideration of the jury, except for tbe purpose stated in tbe bill of exceptions; and second, wbetber, -when a bill of exceptions states that tbe court “instructed tbe jury upon all tbe issues involved in tbe case, and upon matters properly for their consideration,” but no part of such charge or instructions are incorporated therein, and certain instructions asked and refused are set out and excepted to, the court will presume, upon such a state of tbe record, that tbe instructions asked and refused were covered by tbe instructions given. Tbe facts have already been sufficiently set out in tbe preceding opinion, and a brief outline of the pleadings, and some of tbe evidentiary facts, will be all that is necessary to introduce tbe question involved in our first inquiry. By tbe complaint, tbe defendants were charged as co-partners under tbe firm name of M. E. Pogue, and as liable for certain merchandise sold and delivered to them as such, at tbe times therein mentioned. Pogue made default, but tbe defendant Nickell answered, in which be denied that be was a partner during any of the times, as alleged, or at any other time, under the firm, name of M. E. Pogue, or otherwise. The object of the pleadings in an action is to arrive at a specific issue upon a given and material point; and here tbe existence of a partnership, as alleged, was the material point upon which tbe issue was joinod. It constituted the main ground of contention. As outlined by bis answer, the theory of tbe defendant Nick-ell’s defense was that no partnership ever existed between tbe defendant Pogue and himself; and this theory be maintained and supported in tbe witness box, swearing “that be and Pogue were never partners at any time.” While occupying this position before tbe court, bis counsel undertook to show, by tbe writing, already sufficiently *105adverted to, that the alleged partnership, which the defendant had denied and sworn to never have existed, had been dissolved. This is the effect which they claimed for that writing, and which they insisted the jury was entitled to consider for that purpose, despite the illogical result that it involved of placing the defendant in the awkward and embarrassing attitude of trying to prove that a thing which he had sworn never to have existed, nevertheless did exist, and had been dissolved. As a partnership must be assumed to exist, at least, before it can be dissolved, the writing, to be operative to prove a dissolution, involved this hypothetical dilemma, and made the evidence for the defense somewhat like the answer in the Vermont precedent: “First, defendant never had the pail; second, if he ever had the pail, he returned it whole; and third, if he did not return it whole it was broken when be borrowed it.” It is apprehended, however, that when this dissolution writing, so styled, is examined in the light of the facts and circumstances in which the defendant Nickell testified it originated, it will repel any and every idea that it was taken to dissolve any partnership that existed, or wdiich ever did exist, between the defendants Pogue and Nickell, or that It was taken by him, or was admissible for any other purpose than that for which the court permitted it to be considered by the jury. This result, if it can be sustained by the record, will make the defendant Nickell’s testimony consistent with the purpose for which the writing was taken and permitted to be used; but it will make the writing only admissible to affect the credibility of the defendant Pogue, and not as evidence tending to prove a partnership dissolution
Now, turning to the record, it disclosed that the defendant Nickell testified that “having heard that Pogue had reported to several parties that he was interested with him, as a partner, in the business at Gold Hill, to protect himself, he prepared an agreement, exhibit D,” etc., which is the writing already set out. This shows his version of how the paper or writing came to be taken by him, and the *106reason -he assigned for it. ‘ ‘ Thereupon, ” runs the record, “his counsel offered said paper in evidence, as tending- to show that no partnership in fact existed between said Pogue and the defendant at the time the goods, for the price of which this action was brought, were sold by the assignors of the plaintiff, Dawson, and that any partnership that might have existed between them, express or implied, had been dissolved.” It is sufficient to say that the court refused to allow the paper to be admitted as evidence, and considered by the jury, for any of the purposes offered, other than as evidence tending to affect the credibility of the defendant Pogue; and counsel insist, in this ruling, that the court committed a “glaring error” upon a “vital point.” To show by competent evidence that the alleged partnership did not exist was undoubtedly a point of vital importance to the defendant Nickell, and h'is own evidence was direct and positive that he and Pogue were never partners at any time; but do the facts, as disclosed by his evidence upon this record, justify the assumption that the paper was taken or executed to dissolve any partnership existing in fact, or in fancy, between them? On the contrary, do not the facts, interpreted in the light of his own testimony, absolutely negative the idea of the existence of any partnership which the paper could operate to dissolve? He says that, having heard that Pogue had reported that he was interested with him, as a partner (that is, without his knowledge or consent, and in his absence, that Pogue had been making declarations to parties that he was a partner), and he says, “to protect himsélf, ” he prepared the agreement, exhibit D, etc. That is, to protect himself from the effects of Pogue’s declarations, he prepared, and they executed exhibit D. In this view, unless the effect of Pogue’s declarations was to bind him as a partner, and thereby create a partnership, the paper, whatsoever may be its phraseology, could not be operative as a dissolution agreement. Its effect, for this purpose, depends upon the legal effect of Pogue’s declarations to bind him as a partner, under the facts indicated. On an *107issue of partnership, as here, the principle is elementary that the declarations of one partner are admissible only to charge himself, and are incompetent to prove that any other person is a member of the firm. “In such cases,” said Gilchrist, J., “the question is whether the defendants be jointly liable. Bach one may admit his own liability, as far as he may choose; but, when the attempt is made to charge third persons with a debt, upon his mere declaration, the evidence is merely hearsay, and does not come within any of the exceptions which permit the introduction of such proof. ” Bank v. Moore, 13 N. H. 101. So that it may be said, upon the question whether a partnership exist, the rule of evidence is well established that the declarations of one of the alleged partners, made in the absence of the other, cannot, as against him, be used to establish the controverted fact of partnership. McPherson v. Rathbone, 7 Wend. 216; Cowan v. Kinny, 33 Ohio St. 428. It is evident, then, that the declarations of Pogue could not be used as evidence to establish a partnership liability against the defendant Nickell, or to create the relation of partners between them. They could not, therefore, have the effect to bind him as a pai’tner,—much less, to establish a partnership between Pogue and himself, either in fact or hypothetically; and, as a consequence, it results that the paper, or exhibit D, cannot be operative as a dissolution agreement, within the purview of the facts for which it was prepared and executed. To hold otherwise would expand its legal operation beyond the legitimate effect of the facts to which it owes its existence, and alien to the purposes for which those facts authorize it to be used.
In brief, if the defendant Nickell prepared the paper for the purposes stated, then, as what 'Pogue had said could not have the effect to bind him, and create the relation of partners, it follows that the paper could not be used as evidence of a dissolution, as that is repugnant to the reason of the facts, and would have the effect to extend its protection to objects, and to use it for purposes not contemplated by the facts, and beyond the reach of any *108legal liability growing out of them. In this view, it to clear that the writing was- inadmissible as a dissolution agreement.
But again. From the standpoint of the defendant Nickell. the face of the facts show that when he heard of these declarations, and prepared exhibit D he did not suppose, or act upon the assumption, that any partnership existed in fact or otherwise between the derendant Pogue and himself. Now, let it be noted that the disagreement in this rase between the defendants does not arise out of any misconstruction as to what, is their true relation upon some admitted state of facts, about which there might be i difference of opinion as to whether they were partners or there w7as a partnership. Cases, no doubt, may occur where, upon a state of facts, the one may think he is s. partner, and the' other may think otherwise; and, in the end, their true relation can only be determined by the aid. of the court. But this was no such case. The writing was not prepared because the defendants differed as to what was their true relation in respect to srtain dealings or transactions between them, and executed o segregate, dissolve, and settle their respective interests, and +o avoid litigation. There is not the shadow7 of a pretense that the writing itself was followed, at the time of its execution or afterwards, by any act or acts of dissolution. Not a dollar or thing, not an iota of property, real or personal, was taken or relinquished in pursuance of it, Not a thing was done, or expected to be done, under it; and, so far as its operative force was concerned, as to any uses it served in separating and settling any joint transaction between them, it w7as as lifeless as a blank sheet of paper. What, then, was the object of the writing, and what was the protection it was intended to afford? To my mind, this is plain for the only legal purpose to which .t could be applied upon the facts. It was Pogue’s unruly tongue, so to speak, that portended danger; and the object was to bridle it, or to impair its power for injury. As the mere declarations of Pogue that he was his partner were incom*109petent as evidence and could not bind him in an action on an issue of partnership, on the other hand, his testimony that such a relationship did exist was competent, and, if the jury believed him, would bind him. Now, as the defendant Nickell believed, as he has since sworn, that no partnership existed between them, he sought and ob tained from Pogue what would serve as his written declaration of the non-existence of that fact; so that, in case of an action like the present, it might operate as a restraint or bridle on Pogue’s tongue, or, if his declaration should take the form of testimony, he could confront him with his written statements to the contrary, which would destroy the value of his testimony, or affect his credibility, and thereby protect himself from injury. Within the facts, this explains the only legitimate object for which that writing could have been prepared, or the protection it could afford. It was to confront Pogue, in the event the issue should come as here, with his own written statements, and to condemn him out of his own mouth. For this purpose the court permitted it to go to the jury; and, in the light of the facts, it has performed the only mission it could have been designed to legally serve. Despite this, however, it is insisted that the writing was pertinent and relevant to the issue, and ought to have been allowed to go to the jury as evidence tending to show a partnership dissolution; and that the rule of law declared in excluding it was ‘ ‘ new and novel, ” wrong in principle, and dangerous in practice. This argument amounts to saying that partners may prove in their own favor whatever they may state, orally or in writing, without regard 'to the circumstances in which such statements originated; or, in other words, that they may prove, each other’s declarations disclaiming it, that they were not partners, All that is necessary when an issue of partnership is involved, no matter what may be the facts, is to formulate each other’s statements, verbally or in writing, that they were not partners, ■—or if a case is made against them, that it has been dissolved; and the court must admit them on the controverted *110facts of partnership.. It makes no difference whether a partnership existed or not, or what may be their true relation. The declarations of the parties denying, or that it was dissolved, would be pertinent and admissible. Such a rule would be broad enough, if the parties were corrupt enough, to cover any emergency; and its establishment would be a reproach and a menace to the administration of justice. It is in violation of the just principle regulating the admissibility of declarations, and in practical operation would be likely to serve the unjust and.punish the just. To admit such testimony, would, as Ryland, J., said, “enable a crafty set of men to carry on an extensive operation as partners, to the world; but when preparation was about to be made, necessary to a failure, then one might withdraw, with all the funds and stock, and honest, confiding creditors be met with the assertion that they never were partners,—that there was no partnership,—and prove it, when sued for their just demands, by declarations made to and about each other during the time they ‘ were seemingly engaged as partners. No such declara ' tions should have been received.” Young v. Smith, 25 Mo. 346.
“Parties,” says Mr Bates, “cannot prove that they were not partners by proof of each other’s declarations disclaiming it. Such declarations, unaccompanied by acts, are no more than the declarations of third parties. ” Bates’ Law of Partnership, § 1143. “They are not entitled to prove in their own favor,” said Payne, J., “whatever they or their co-defendants may state.” Carlyle v. Plummer, 11 Wis. 105. “Nor,” as Mr. Justice Green said, “give their private conversations or correspondence with one another, or show that they had not held themselves out to the public as partners.” Freeborn v. Smith, 2 Wallace, 101. Judged by his own version, this paper was prepared by the defendant to protect himself against the declarations of Pogue, and not to dissolve any partership he thought or supposed to exist, yet to give this paper the effect claimed it places Nickell in the unenviable attitude of preparing *111his owii and Pogue’s declarations in the form of a writing contradicting or dissolving it, which, in the event of an issue of partnership, as here, he could use as evidence for that purpose. Self-serving declarations cannot be put in evidence, but what shall we say of such as are prepared? It is incontestable that this paper was not executed in pursuance of any dealings or transactions between the defendants, and, therefore, it could be no part of any transaction, or a part of a transaction, to dissolve a partnership; nor was it, or the declarations, accompanied by any act or acts of dissolution. In Phillips v. Purington, 15 Me. 425, it is held on the question whether a partnership did or did not exist, the declarations of the alleged partners, unaccompanied by acts, and unconnected with any of their declarations proved by the other party, are madmissible in their own favor. And so all the authorities speak, without a dissentient voice.
The cases cited by my Brother Strahan—with due deference I say it—do not touch the point involved in the issue here presented. It will be enough to advert to the principal ones relied upon, to illustrate my meaning. In Emerson v Parsons, 46 N. Y. 560, the partnership was admitted, and the parties had’ testified to the fact of its dissolution, and then offered in evidence the writmg of dissolution which was executed in pursuance of it, which wras admitted. As Church, C. J., said: “It was a part of the transaction which was claimed to be a dissolution of the partnership.” In Cregler v. Durham, 9 Ind. 375, a partnership had existed, and had been dissolved; and it was sought to hold one of the defendants upon a subsequently created liability. As tending to prove the fact of a dissolution of the partnership, the statements of members of the firm jointly made to third persons of the fact, were admitted and excepted to, the court saying that “them declarations and acts touching the subject are continuous res gestee. ” In these cases the writing and declarations were a part of a transaction. A partnership which had existed had been dissolved, and these were a part ol the facts surrounding *112its dissolution and necessarily a part of the res gestee. Now, if there was a partnership, and it had been dissolved, these facts being admissible in evidence, the acts and declarations accompanying them likewise are,—are a part of the res gestee. But if there was no partnership, as is claimed there could be no such transaction as a dissolution of it, and a paper prepared and executed to dissolve that which did not exist could be no part of the res gestee. There is no main act or transaction which such declarations or paper can accompany, and be a part of it; and. consequently, they are not admissible on that ground. And herein lies the difference between these cases and the case in hand. That such a paper, prepared and executed under such circumstances, should be used as evidence for the purpose claimed, cannot be sustained. It is subversive of the soundest principles of the law regulating the rules of evidence. On the other hand, to admit it for the reason allowed by the court, it serves the only legal purpose for which it could have been taken; is consistent with defendants’ statement of the reasons for which it was prepared and executed; and is, likewise, consistent with the testimony and verified answer. There was no error.
The next question is whether, when a bill of exceptions states that “the court instructed the jury upon all the issues involved in the case, and upon matters properly for their consideration,’’but no part of such charge or instructions are incorporated therein, and certain instructions asked and refused are set out and excepted to, this court must presume, upon such a state of the record, that the instructions asked and refused were covered by the instructions given. The question arises out of the opinion of the chief justice, supra, in which he said: “It is the better rule to require counsel to bring here the instructions which the court did give, or have the bill of exceptions state what instructions were given, if any, in reference to the matter covered by the instructions asked and refused, before they are allowed to complain in. consequence of such refusal. Where an ordinary instruction relating to *113the matters in issue is shown to have been requested by counsel and refused by the court, it should be presumed, in the absence of a contrary showing, that the refusal was made upon the ground that it, in substance, had already been given. ” Upon this ground the majority of the court refused to consider the instructions asked for, and refused by the court below; and this is claimed to be a “new rule of practice, ” which, if adhered to, will prove to be vexatious and cumbersome; and therefore a reconsideration of the opinion, in this particular, is demanded alike by a well-regulated practice and the defendant injured by it. Mr. Thompson lays it down as elementary law that “it is not error for the judge to refuse requests for instructions upon propositions which have elsewhere been sufficiently covered, either in his general charge or in other special instructions given; and it is a principle, upon which appellate courts uniformly act, that the judgment will not be reversed for the refusal of instructions, if the court can see that the case was placed fully, fairly, and properly before the jury by the instructions which were given, although the requests- refused may have been correctly drawn in point of law, and in their application to the evidence, ”—and cites numerous authorities in support of the principle. 2 Thomp. Trials, § 2352, and note 3.
Among the various reasons assigned for the rule, one is: 1 ‘ That courts will presume jurors to be men of average intelligence, and capable of understanding and bearing in mind a proposition of law once fully and clearly stated, without its repetition in subsequent instructions;” and it is also laid down that the repetition of instruction on particular points is a censurable practice, as it may tend to give undue prominence to particular features of the evidence. Id., and notes. It must then be regarded as settled law that, if the instructions asked are covered by the instructions given by the trial court, such court may refuse to instruct further, and such refusal is not error. Now, the record discloses affirmatively that the court “instructed the jury upon all the issues involved in the case, and mat*114ters properly for their consideration, ” which must include the instructions asked and refused, or their substance,— assuming that such instructions were correct in law and applicable to the facts; and, under the elementary and familiar rule that error is never presumed, must we not presume that the instructions given covered the instructions asked and refused, unless the appellant made the instructions, or, at least, so much of them as may be necessary, a part of the bill of exceptions, and thereby show the fact to be otherwise, and thus rebut such presumption in favor of the trial court? It has been repeatedly held by this court that error will not be presumed, and that the party alleging its existence must make it affirmatively appear, and with a reasonable degree of certainty. Said Strahan, J.: “It does not appear from the record what instructions the court gave the jury. In such case, it cannot be assumed that the court instructed erroneously. On the contrary, the legal intendment is that proper instructions were given. To hold otherwise would be to presume error, which is never done. He wdio alleges error must make it appear affirmatively from the record.” Coffin v. Taylor, 16 Or. 375; Thompson v. Coffman, 15 Or. 631.
This theory of the law, that all presumptions are in favor of the correctness of the action of the trial court in its rulings or decisions, necessarily makes it the duty of him who claims its actions in the premises to be erroneous to save and preserve in a bill of exceptions such alleged erroneous rulings and decisions in such form as will exclude the influence and operation of such presumptions. As the appellate court must act on the presumption—especially on a record like this—that the instructions given by a trial court fairly and correctly stated the law applicable to the facts, and as this presumption would inevitably include or cover the substance, at least, of the instructions asked which were correct in point of law, and applicable to the facts, and would justify their refusal on the ground of repetition, the defendant, to show error and exclude the effect of such presumption, would necessarily *115be compelled to include in the bill of exceptions the instructions given, or so much of them as was necessary for that purpose, so as to show affirmatively to the appellate court that they did not cover the instructions refused. The case stands, then, in this wise: The appellant claims that the instructions asked are good law, and applicable to the facts, and, therefore, that it was error to refuse to give them to the jury; but to this it may be answered that the record shows that the court did instruct the jury upon all the issues involved, and that in such case the presumption of law is that the jury was properly instructed upon the law applicable to the facts. And this being so, it follows that your instructions have been covered by these already given, unless you can show by the instructions given, and those asked and refused, that such is not the fact. How can this be done, and the appellate court perform its office, unless the bill of exceptions contains the instructions given? How, on the basis of this presumption, and the duty of the appellant to show error, can the appellate court know with certainty that the trial court erred in refusing the instructions asked, when he has failed to furnish the data which'would show the alleged error, viz., the instructions given? In Moody v. Railroad Co., 41 Iowa, 284, the court say: “It is urged that the court erroneously refused certain instructions which are set out in the abstract. Should we concede that these instructions are correct, we cannot reverse the judgment for their refusal, upon the facts made to appear by the abstract before us. It is shown that the court instructed the jury; but the instructions given are not set out. We must, in the absence of error being made to appear affirmatively, presume in favor of the correctness of the court’s rulings upon all questions. We will presume that the jury were correctly instructed, and, if any instructions were refused which announce correct rules of law, the refusal was on the ground that the instructions given presented the same doctrines. ” In Kennedy v. Anderson, 98 Ind. 152, the record shows that certain instructions were asked by the defend*116ant and refused, etc., and the court say: “The presumption is that the court instructed' the jury fully upon the law as applicable to the facts in the case; and, unless we had before us all the instructions given, we cannot say but these instructions were refused for the reason that the court had substantially given the same in its own instructions.” In Myers v. Murphy, 60 Ind, 287, the same court thus stated the doctrine: “All the presumptions are'in favor of the correctness of the decisions of the court below; and, where a party claims in this court that any of those decisions are erroneous, he must so save and present the alleged erroneous decision, in the record, as to exclude every reasonable presumption in favor of such decision. In this case, as the appellant failed to make the instructions of the court below to the jury a part of the record, it is impossible for us to know with any certainty whether or not the court erred in its refusal to give the jury the instructions asked for by the appellant; and therefore we are bound to presume that the court did not err in such refusal. In Commissioners v. Roberts, 22 Kan. 762, it is held that the court will not ordinarily reverse the judgment of the trial court for alleged errors in giving and refusing instructions, when all the instructions given in the case are not embraced in the record. So, also, in Hahn v. Insurance Co., 50 Ill. 526, it is held that a judgment will not be reversed merely because an instruction, though proper in itself, was refused, when it appears from the bill of exceptions that instructions were given which are not embodied in the record. And finally, in Elliott v. Rosenberg, 17 Mo. App. 668, the court say: “The defendant asked the court to give certain instructions, which the court refused to give. "We are- not at liberty to review the action of the court in refusing these instructions, because the record further shows that the court of its own motion gave certain instructions, and the instructions thus given by the court are not preserved in the record. As every reasonable intendment must be made against the appellant, and in favor of the validity of the action of the court, we are *117legally bound to assume’tbat the instructions given by the court of its own motion were not only proper declarations of law, applicable to the facts, but, further, that they may have covered the grounds, properly embraced in the instructions asked by the defendant.” Greenbaum v. Millsaps, 77 Mo. 474; Connolly v. Davidson, 15 Minn. 520 (Gil. 428); Aldrich v. Palmer, 24 Cal. 513; Killips v. Insurance Co., 28 Wis. 472; Wolfe v. Tyler, 1 Heisk. 313; Insurance Co. v. Sturges, 12 Heisk. 339; Brown v. Forest, 1 Wash. T. 201. In several of these States the court is required to charge the jury in writing, at the request of a party as in our State; and in some others the charge must be in writing. It would seem that the reason of the rule grows out of the fact that, as counsel draw their own instructions, and can require the instructions of the trial court to the jury to be in writing, and thus afford the appellate court an opportunity to consider all the instructions,—those given and those asked,—and to determine, upon the whole, whether the law has been fairly and correctly presented to the jury, it is but reasonable to require the parties who ask instructions which are claimed to be good law, and applicable to the case, to bring the instructions given. Otherwise, the appellate court will presume that the trial court has discharged its duties, and properly instructed the jury upon all the material facts. But, I must confess, I am not favorably impressed with so broad an application of the rule. Under a statute like our own, where the charge may be, and usually is, orally given, unless a party exercise his right, and require the trial court to put it in writing, it seems to me that such presumption ought not to prevail, but that it ought to be confined in its operation to the case in which written instructions have been required and given by the trial court; and then, if a party complains that instructions asked have been erroneously refused, and fails to bring the written instructions given, it is right enough that such presumption should be indulged. In this view. ’ where the instructions given are oral, like the case at bar, the duty of the appellate court would simply be to deter*118mine whether the trial court ought to have given the instructions asked and refused, or either of them. In doing this, the appellate court is not to presume, because the instructions asked were refused, that no instructions on the point were given, or that those given were neces* sarily erroneous; but, if the instructions asked and refused contained a correct exposition of the law applicable to the facts, and which ought to govern and control the case, it ought to sustain the exception to their refusal, and reverse the case. This would necessarily require the appellate court to examine the instructions, to ascertain whether the trial court was bound to give them; and for this reason I shall refrain from deciding the question, and pass to an examination of the instructions asked and refused, with the remark that the object of the extended notice given to this subject has been to attract attention to it. The instructions deemed necessary to pass upon are fully set out in the dissenting opinion of Mr. Justice Strahan, and by reference to them the application of what follows may be observed. It will be noticed that in some form or other they are all based on the idea that there was some evidence of partnership dissolution prior to the purchase of the goods for which the action is brought. The record discloses there is not a •scintilla of evidence on this point, except what is claimed as the effect of exhibit D; and, as we have already shown, in view of what that writing was taken for, that it cannot operate as evidence of a partnership dissolution, it follows that the instructions asked and refused were not based on evidence in the case, and were properly refused.
The judgment must be affirmed.