The most important contention made by the defendant upon this appeal is that there is no evidence in the case tending to show that he {Oarson) severally employed Mr. James to defend Mrs. Russell, and that at most the evidence only tends to show a joint employment by Oarson and Buffington. A careful review of all the evidence convinces us that this contention is well founded and must prevail.

Where the terms of an oral contract are to be gathered from conduct and conversations, or where they are in dispute, or are ambiguous or vague, the question as to what *637the understanding or agreement in fact was is a question for the jury. Becker v. Holm, 89 Wis. 86. But where an oral contract is detailed by the plaintiff, and no other testimony is given concerning it, and it is clear and unambiguous in terms, it is the duty of the court to construe it.

That is the case before us now. Mr. James gave his version of the contract of hiring in no uncertain terms, and it established, if believed, a joint contract on the part of Oar-son and Buffington on one side and Mr. James on the other. This oral contract is related by the plaintiff several times during his examination as a witness, and in substantially the same terms. Upon direct examination he relates it as follows: 11 Mr. Carson stated to me that the only reason he and Mr. Buffington had for taking the interest that they proposed to in the Eussell case was, as outlined by Mr. Ruffington, as stated by Mr. Buffington. That Mr. Eussell had been an old and faithful employee, — reiterated the substance of what Mr. Buffington had said. In that conversation I explained to Mr. Oarson what would have to be done in order to prepare the defense, as I had done to Mr. Buffing-ton. I also said to him what Mr. Buffington had said about the payment of the expenses and bills. I told him that Mr. Buffington said that he and Mr. Carson would pay the bills, and he said they would do so, and gave the reasons why they would do so, as I have stated. I agreed with Mr. Carson to proceed with the preparation of the defense of the case according to the best of my ability.” Upon cross-examination he states it as follows: “I cannot state everything that I said to Mr. Carson in that interview except in substance. I said it might be necessary to interview various parties who might have some knowledge on the subject, or supposed to have some, and I referred to the labor that would be involved, and' told him that it involved the making of a careful investigation of the facts; that it would be laborious, and consume time; that Buffington had re*638quested me to take charge of the defense; that be bad said that be wanted everything done that was necessary; that be wanted a complete defense made for ber; be didn’t believe sbe was guilty, and be wanted no stone unturned, and be wanted me to take bold of it and do everything in connection with it; that I bad said to Buffington that the course which be marked out, and which seemed necessary, would involve large expense; that I had gone over that with Mr. Buffington, and that Mr. Buffington bad said that be and Mr. Carson would defend ber,— proposed to defend her; that the bills should be brought to them. Mr. Carson said that Tom Russell bad worked for them for a long time, and bad been faithful; that they bad made money out of bim, and that they proposed to stand by ber,— proposed to stand by bis wife,— stand by Mrs. Russell; be repeated that; said it more than once; that was their reason for it.”

It seems to us entirely plain that this means but one thing, namely, that Ccwson ratified Buffington’s promise, and thereby agreed that be and Buffington would pay the bills for the defense jointly. There is no room for construing it into a promise by Carson to become individually liable.

But it is said that the subsequent conduct of Carson, bis great interest and activity in the defense, bis frequent consultations with James about the case, bis directions as to the employment and retention of experts and detectives, may by themselves alone be sufficient evidence from which to find that a separate contract bad been made by bim. Doubtless, if there bad been no evidence showing an original contract in definite terms, all this evidence should go to the jury, to decide what, if any, contract Carson bad made. But when we have the original contract of hiring in clear and express terms, these subsequent acts lose all their force as tending to prove separate liability. They are just as consistent with a joint promise by Carson and Buffington together as they are with a separate promise by Carson alone. One witness, *639it is true, says that he heard Mr. Carson say on the street that “ he had employed James to defend,” but this statement is entirely consistent with a joint hiring by Ccurson and Buf-fington. We shall not attempt to detail the testimony on the point, but will simply state the conclusion that the testimony of Mr. James clearly shows a joint contract, if it shows any contract, and that all the subsequent acts and conversations shown were consistent with a joint hiring, and hence furnish no ground on which to build a contract of separate hiring.

The contract (if there was any contract) being purely a joint contract with Buffington and Ccurson, and there being no evidence to show a several contract on the part of Carson alone, the submission of the question to the jury was erroneous, and the answer to it should have been stricken out. It follows also that, if the transaction between James and the executors of Buffington’s estate by which James, in consideration of $1,500 paid him, withdrew his claim against the estate, amounted to a release of Buffington’s estate, then such release operated as a discharge of one half of the claim, under sec. 4204, E. S., and in that event the plaintiff could not recover the entire balance of the claim against Carson alone, but only Carson's equitable portion thereof as between him and Buffington. The questions which the defendant proposed for the special verdict, submitting to the jury, the question whether this transaction was in fact a release of the Buffington estate, were therefore proper, and should have been submitted in substance at least.

Upon the trial two expert witnesses were called, who had some conversation with Mr. Buffington, after the prosecution had commenced, with reference to their being employed as experts in the case. They were allowed to testify against objection that Mr. Buffington told them, in the absence of Carson, that he and Carson had undertaken the defense, and had employed James. The admission of this testimony is-alleged as error, and we think it was' error. The complaint *640distinctly alleged a separate contract by Carson. The answer denied any contract. This was the issue when the case began, and no amendments have been made to the pleadings to change that issue. The plaintiff introduced evidence which he claimed tended to prove a separate contract. He claimed a separate contract in the court below all through the trial. The jury found it. The judgment which he obtained is founded upon such a contract, and can be sustained upon no other, and he claims the same thing in his brief in this court. Now, it is said that, because the defendant did not object to the evidence which we now hold showed only a joint contract, therefore he is precluded from objecting to evidence of Buffington’s admissions. It is argued that he tried the case on the theory of a joint contract, and cannot now abandon that theory. This is a misconception of the defendant’s position and rights. He has denied from the beginning, both in his pleadings and in his evidence, that there was any contract, joint or several, and has simply claimed that, if the plaintiff’s evidence is to be believed, it proves only a joint contract. That he has a right to do without prejudicing his own defense. It seems to us that the plaintiff’s position is the inconsistent one. He starts out with a claim of a separate contract, insists that his evidence shows such a contract, obtains a verdict establishing it, and a judgment which can only be sustained on that basis. Now, how can he be heard to say on one point of the trial that he will put in evidence which can only be received on the ground that he has shown a joint contract? Against objection properly taken we do not think, upon principle, that he can so shift his position. It is too much like blowing hot and cold at the same time. It is not a case ■of the trial of an issue outside of the pleadings without objection, but a case of a shifting of ground during the trial without amendment of the pleadings, against objection properly taken at the time.

It is strenuously urged that the evidence shows that Car*641son’s contract, if he made any, was an engagement to answer for the debt of another person, namely, the debt of Mrs. Bussell, or of Mrs. Bussell and Mr. Buffington, and hence void, because not in writing expressing the consideration. This contention we do not regard welL taken. The evidence shows that the contract, if made at all, was an original joint contract by Carson and Buffington together, made before any substantial work had been done by James, and was not collateral to any previous contract.

It is also objected that the contents of a lost telegram, alleged to have been sent by Carson to James, was allowed to be proven orally without proof that it was sent by Mr. Oarson or was in his handwriting. It appears from the ease that the contents of the alleged telegram was proven on the examination of the plaintiff without objection. It is not necessary, however, to sustain the ruling on this ground. There was evidence in the case showing the sending of letters, proved to have been signed by Carson, to Mr. James, all containing similar directions or advice concerning the conduct of the trial; and we think this evidence, in connection with the evidence showing similar oral directions by Carson, was sufficient to justify a finding that Mr. Carson in fact sent such a telegram, notwithstanding his statement that he does not remember sending it. If there was such proof, then oral evidence of its contents as received was admissible after the proper proof had been made showing its loss. Flint v. Kennedy, 33 Fed. Rep. 820; Saveland v. Green, 40 Wis. 431.

We have examined the remaining points made by the defendant, but do not consider it necessary to go over them in detail, but shall content ourselves with saying that we have found no other prejudicial errors.

By the •Covrt.— ¿Judgment reversed, and action remanded for a new trial.