1. Appeal: court: equity cause tried de novo. The cause is in equity and triable by the first method. Notwithstanding the special finding of the jury, the cause is to be tried in this court d& novo. (Rev. § 2999, ¶ 3.) The record s ° 7 # ' does show what the special verdict was, and there is no indispensable necessity that the charge of the court should be brought up. At all events, the objections made by the plaintiff on the argument in this court, that this cause cannot be reviewed in consequence of the absence of the instructions to the jury in reference to the special issues, is not tenable, the record not showing that any instructions as to questions of law, or as to the considerations which should guide them in answering the special issues, were given. The instructions incidentally referred to on the record entry, may have consisted wholly of explanations of the questions, and directions as to the mode of answering them. Besides, these findings have no conclusive weight, and are to be accepted or rejected as the court considers equitable. (Rev. § 2999, ¶ 2.) Of course the instructions might have been, and, if not lost, properly should have been, embraced in the record on appeal.

2. — certificationofevideuce. The plaintiff makes another point preliminary in its nature, viz., that the evidence is not properly identified or certified. The clerk, however, certifies that , # 7 “ the depositions accompanying this transcript marked A, B, O, D and E, are all of the evidence in the said case used on the trial thereof.”

¥e find the depositions thus referred to and all of them marked as thus designated. This we hold to be sufficient in the absence of any showing or suggestion that other depositions have been substituted. On examining the deposition referred to, we are fully satisfied that they are the identical ones referred to by the clerk.

This brings ns to the case upon its merits. As the *226cause turns wholly upon the weight to be given to conflicting testimony, we adhere to the rule we have adopted, — to state conclusions, and not to enter into an extended discussion of the evidence. This has been examined and re-examined by the members of the court separately and in concert.

A majority of the court are of the opinion that the plaintiff has established a meritorious claim, and that he ought to be paid, and agree to the disposition of the cause ■ as' hereinafter stated, saving the rights of the defendants as -among themselves. That the plaintiff rendered services in buying and procuring horses to fill the contract is not denied; that he performed as much or even more actual labor in this respect than any of the defendants is quite clear; that this was done at the instance and with the full knowledge and assent of all of the defendants is an admitted fact in the case; that for these services he has ever been paid is not claimed by any of the defendants. The petition and amended petition are so framed that the plaintiff can have any relief that the court may consider equitable. (See statement.) We are clearly of opinion that the jury were justified in finding as they did that the plaintiff was a partner with the defendants in the business of furnishing horses for the 8th Iowa cavalry.

But the question which is mainly controverted by the defendants among themselves is, whether he was a partner with Smith, Kelly and Washburn, or with Ingham and Hooker. Smith, Kelly and Washburn claim, and the testimony introduced by them tends to show, that the plaintiff’s interest in the contract was with Ingham and Hooker. The latter claim, and the testimony produced by them tends to show that the plaintiff’s interest was with Smith, Kelly and Washburn.

Taking the evidence together, the transaction may be fairly explained in this wise: Plaintiff originally was *227to be interested equally with the other defendants. But when the contract was awarded to Hooker, his side insisted on a new arrangement, and accordingly a new contract was made between Kelly, Smith and Washburn, of Davenport, on the one side, and Ingham and Hooker, of Des Moines, on the other, whereby the former were to furnish five-twelfths of the capital and have five-twelfths of the profits, and the latter to furnish seven-twelf$í¡r~ v' of the capital and have seven-twelfths of the pr<j(fits>..~v.. V. This contract was reduced to writing, and was edr!-.. eluded by the defendants in the absence and withoujfthgr-" knowledge of the plaintiff, who was not advised ^fJits ” '' existence until after this suit was commenced. , ibb?,'!'

Under the impression that he was interested in the--., contract, as was beyond controversy the original understanding, and by direction of all the parties who signed it, that is, by the direction of all of the defendants, the plaintiff performed his share, if not more than his share, of the labor of fulfilling it. The defendants have received the benefit of his services. The plaintiff states that these . services were rendered by him upon the understanding with the defendants that he was to have one-fourth of five-twelfths of the profits. Had he not by his testimony twice limited the amount, as above stated, we should, perhaps, have regarded him as equitably entitled to one-sixth of the profits.

As it is, he cannot complain that he is allowed as much as he claims. The defendants cannot complain of this amount, although, as. between them, they differ as to which side should pay it.

This result avoids the anomaly presented by the findings of the jury, and decree of the District Court, viz., of forcing the. plaintiff to take more than, upon his o.athr twice repeated, he claims to be entitled to.

Th# amount of the profits is undisputed, viz.,, $7^098.1A *228This amount was received and divided between the defendants, Kelly, Smith and Washburn receiving five-twelfths thereof, and Ingham and Hooker, representing Hooker & Co., seven-twelfths thereof. This division ivas made with the knowledge of the plaintiff,- and when he requested the Kelly, Smith and Washburn side to settle with him for his interest, they refused, saying that Hooker & Co. had his share. When he demanded payment from the latter, they refused, saying that Kelly, Smith and Washburn were to pay him. What we decide is, that the plaintiff has established a claim against all of the defendants, to the extent above stated. As the defendants do not seek any relief herein, as against each other, we do not decide, as between them, which side (Davenport or Des Moines side of the contract) is primarily liable for the amount due the plaintiff.

This we leave an open question, to be adjusted in a subsequent suit between the defendants.

If Kelly & Co. can establish that Hooker & Co., at the time the written contract was entered into (in the plaintiff’s absence), agreed with them “to take care of Bill’s (the plaintiff’s) interest,” then they can recover of them the amount which, by this decree, they will be obliged to pay to the plaintiff. If, on the other hand, Hooker & Co. can establish that it was the understanding that Kelly & Co. was to pay or compensate the plaintiff, then they can recover from them the amount which, by this decree, they are obliged to pay to the plaintiff.

On this basis there is due the plaintiff (including $100 for the horse furnished and not settled for, and including interest to duly 1, 1.868) the sum of $1,115, of which amount Kelly, Smith and Washburn are decreed to pay the sum of $190, and Ingham and Hooker the sum of $685.

The costs in the District Court to be paid one-half by *229Kelly & Co. and the other by Hooker & Co. The costs in this court to be paid by the plaintiff.

The cause will be remanded, with directions to enter a decree in conformity with this opinion.

Judgment will be entered in this court accordingly.

(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.