We think there is no material distinction between this case and Wells v. Martin, 32 Mich., 478, as to the proof introduced to show liability.

. We discover no evidence in the record tending to show an original undertaking by Danaher, or any act of ratification of any arrangement which Fahy & Dye may have made, and the bill of exceptions states that the substance of all the testimony given is set out; and the judge, after refer*296ring in his charge to the evidence supposed to bear on the point, stated that it was substantially the testimony produced by both parties.

The judgment should be set aside, with costs, and a new trial ordered.