(dissenting). — I object to the foregoing opinion for the reason that it makes a contract for the parties which is not claimed in the pleadings, and which finds no kind of support in the evidence.
It is quite likely that if the contract, recognized in the foregoing opinion, had been suggested or had occurred to them, they would have made it; but as they did not, I do not believe it is our duty to make one for them, nor to help out a hard case, merely because plaintiff’s claims are meritorious and he ought to have something from some person.
Plaintiff, by the majority opinion, is confined to one-fourth of five-twelfths of the profits, because by his own testimony he thus limits the amount; and but for this he would have been entitled to one-sixth of the profits, “ and thus the anomaly is prevented of forcing upon him a greater amount than by his oath, twice repeated, he claims to be entitled to.” But, by this same oath, he makes Smith, Kelly and Washburn his debtors, and not the other parties to the contract. Now, if he had not so testified, I might have concluded that his claim was against all. There is evidence tending to show that his claim was solely against Ingham and Hooker; while other parts of it tend to establish a liability alone on the part of Kelly and others. But I fail to find in the record the least evidence that he or any one dreamed that he had a claim against all of them. There was some warrant for the finding of the jury against Ingham and Hooker. And yet I think the decided weight of the testimony is *230that plaintiff’s claim was against the other parties. That it was against all, I do not believe. I am sure he did not so understand it according to his own testimony. I think it is quite as inconsistent to give him relief which he disproves by his own evidence, as it would be to deny him all aid because by his own carelessness or otherwise he failed to have an understanding as to who was to be his debtor, or left it so indefinite that it cannot be told where the liability is. If he has failed to establish a liability on some one of the parties, I should not help him out by making all pay. I know of no excuse for this, except the thought that defendants should be thankful that one side or the other was not made to pay all Its sufficiency, I confess, I did not appreciate. I doubt whether they will or should.