This action was brought against the defendants to recover a balance due the plaintiff for cutting and delivering to them logs and timber. The plaintiff obtained a judgment in the circuit court, and from this judgment the defendant McDermott appeals to this court. Sullivan does not appeal.

*35The contest upon the trial was not as to the amount alleged to be due the plaintiff upon his contract, but the defendant McDermott insisted that he was not a party to the contract, and that he made no-contract, either with the plaintiff separately, or jointly with Sullivan. The plaintiff claimed his contract was with Sullivan and McDermott jointly, and that both were liable to him thereon. At the close of the plaintiff’s evidence a motion for a nonsuit was made in the following language: “The defendant moves for a nonsuit.” Motion overruled, and defendant excepted. There is no pretense but that there was sufficient evidence to sustain plaintiff’s action as against the defendant Sullivan, and it is claimed by the learned counsel for the respondent that the motion was properly overruled for that reason, even if there was no evidence in the case sufficient to fix any liability on the defendant McDermott. We shall not determine whether the defendant McDermott can avail himself of the motion for a nonsuit made in that form, since, after a careful reading of the record, we think there was sufficient evidence given on the part of the plaintiff to carry the question of the joint liability of the defendant McDermott to the jury. "Without making any extended statement of the evidence bearing upon that point, we will simply quote a part of the testimony of the defendant Sullivan on Ms examination as a witness for the plaintiff. Question. “ State whether there was any reason given by McDermott, at the time you made this contract, why he did not sign it.” Answer. “ Not in particular. He said: ‘ Go in and make the contract, and we would log it together, and put in together.’ ”

The evidence showed that the plaintiff’s proposition in regard to putting in the logs had been accepted by both the defendants, and that a few days afterwards a more formal contract was made, and signed by the plaintiff and Sullivan only. In regard to that matter Sullvan testified: “ There was notMng particular said between us before the contract *36was made about the names of the parties that should be in the contract, and nothing in particular afterwards, after the contract was made. McDermott said to get the contract signed,— for me to sign'his signature on the contract. I will swear positively that the contract was to be between each other. That was understood at the time this tender came in, in McDermott's office. We three were there together, and arrived at an understanding at that time, on the 12th of June; It was at the time McPhee brought the tender when we three had the talk and agreed upon it. Two or three days after, we made another contract to take the place of this one.” This second contract was not signed by the defendant McDermott. There is other testimony in the record which directly tends to show that McDermott was interested in the contract, and that he held himself liable to the plaintiff to pay him whatever should become due to him in the execution thereof on his part.

It is evident that the learned circuit judge did not err in refusing to nonsuit the plaintiff as to the defendant McDer-mott. There were no exceptions taken to the instructions of the court to the jury, and it is only necessary to consider the exceptions taken on the trial to the evidence offered by the plaintiff, and the exception to the ruling of the court on the objection of the defendant to the introduction of any evidence under the second cause of action stated in the complaint. This objection was made before any evidence was offered in the case. We do not deem it necessary to consider whether the statement of facts in the second cause of action is sufficient or not —first, because there was no exception taken to the evidence offered, if there was any such in fact offered, when it was so offered on the trial; and, second, because there is sufficient evidence in the case to sustain the verdict and the judgment upon the first cause of action stated. If there was no evidence to sustain the second cause of action, it is to be presumed that the court so instructed the jury.

*37The second objection was to the question put to the plaintiff : “ Whom did yon issue the time-checks on? ” The answer to this was that they were issued on the defendant McDermott. We see no objection to the question or answer. It was clearly competent evidence, as tending to show that the plaintiff considered McDermott as the proper person to pay such checks, and all the evidence in the case shows, that McDermott did in fact pay all the time-checks issued.

The third objection is of no consequence, as the plaintiff did not seek to recover on that contract between Sullivan and Gardiner & Co., and, as the witness himself stated during his examination that the contract was not in fact signed 'by McDermott, no damage was done by his first statement that it was so signed. ITis testimony corrected itself.

Fourth. The defendant objected to the statement of Sullivan, as a witness for the plaintiff, as to what Maxim had stated to him in regard to what was due Sullivan on his contract with Gardiner & Co. This evidence was only a parol statement of the account between Sullivan and Gar-diner & Co., and that account was offered - in evidence in the case by the defendant McDermott himself,’and is substantially as stated by Sullivan. We fail to see how that evidence could prejudice the defendant McDermott in this action.

Fifth. The defendant moved to strike out the evidence of the plaintiff in regard to the work done under the written bid. It is objected that this evidence was inadmissible because the evidence shows that a few days after the written bid for the work, and the joint acceptance of the same by both defendants, another contract, setting out more particularly the terms of the contract, was only signed by Sullivan; bút the contention of the plaintiff was, and there was evidence in the case showing, that, notwithstanding this second written contract, the agreement was that both *38defendants should be liable to the plaintiff on such second contract. In this view of the case, the evidence was clearly admissible. The objection to the introduction of the written bid and acceptance by both defendants was properly overruled for the same reason. It was evidence tending to show that the contention of the plaintiff was according to the facts of the case.

As there was sufficient evidence to sustain the verdict, the refusal of the trial court to grant a new trial on the merits is conclusive upon this court on appeal.

By the Gourt.— The judgment of the circuit court is affirmed.