¶1In the case of Wiswell v. Tefft, et al., \_ante, p. 263,] it may be inferred from the statement of facts - that the contract set forth therein was introduced in evidence in the court below. This is not the fact. The record shows that this contract was set forth in the petition of plaintiff below, which allegation was denied in the answer. The contract was neither offered nor introduced in evidence, and the only evidence touching it, was'evidence of acts that might be deemed to have been done under it.
¶2The only contract between Burgess and the Topeka Association, as found by the court below, is as follows :
¶312. That on the 28th day of May, 1856, F. L. Crane, Thos. G. Thornton, J. E. Greenwood and L. G. Cleveland were trustees of the said Topeka Association ; that they, by virtue of their office and the powers conferred upon them by the constitution and by-laws of said association, and by virtue of said Burgess being admitted to membership as aforesaid, issued to said Burgess a certificate of membership of said share No. 29,’in the words and figures following, to-wit:
¶4“Share No. 29, Topeka Association: This certifies that H. B. Burgess is the owner of share No. 29, of the Topeka Association.