¶1delivered the opinion of the Court:
¶2This was an action brought by Crandall against Warner & Edwards, to recover for work and labor. The principal question was, whether Warner & Edwards or Edwards & Wood were liable to pay for the services. t
¶3Edwards, Crandall &.Wood, as partners, had been running a paint mill until the 1st of July, 1870, when there was an effort to bring Warner into the concern, and it was arranged that he would go into the business for three months, until the 1st of October, on trial, and if he then liked it, he would buy in permanently, and become a partner with Edwards, when Crandall would go out; but if Warner then decided not to go into the business, then the old firm of Edwards, Crandall & Wood was to continue as before.
¶4■Warner did buy in permanently at the end of the three months.
¶5The work sued for was that of Crandall, performed in the business of the mill, during that three months.
¶6The agreement in regard to the labor was made between Crandall and Edwards—Crandall testifying, on the trial, that the agreement was that if, at the end of the three months, Warner should go into the business permanently, then Warner and Edwards should pay him for said work, and Edwards testifying the agreement was, that Edwards and Wood would pay for the work.
¶7On the trial Crandall gave testimony that he put into the firm of Edwards, Crandall & Wood $1500; that Edwards & Wood, who had been previously carrying on the business, represented that it was a good paying business; that he soon found, after entering into the firm and paying his money, that the business was not paying, and that they were sinking money, and that it was agreed between him and Edwards that he (Crandall) should have the money back that he had put in; that he did not get his money, but had to take the notes of Edwards & Wood; that they had not paid the notes yet, and that they were both insolvent.
¶8To avoid the effect of this testimony, the defendants asked this instruction:
“ That the matters of account and business between the plaintiff and Edwards & Wood have nothing to do with this suit; and whether the plaintiff was fairly or unfairly dealt with by Edwards & Wood are mat-tiers that the jury should exclude from their consideration in considering their verdict in this cause.”
¶9The court refused to give the instruction. The testimony was irrelevant to the issue, and should have been excluded from the consideration of the jury. It was well calculated to prejudice the minds of the jury against Edwards, and incline them in favor of Crandall; and it was the right of Warner & Edwards to have the jury cautioned against its effect.
¶10The last clause of the third instruction given for the plaintiff, to-wit: “and if the jury consider it more probable, from all the facts and circumstances as shown by the evidence, that the contract was that such work was to be paid for by Warner & Edwards, then the jury should so find,” was also objectionable.
¶11The jury should not have been left at liberty to speculate on probabilities, but should have been satisfied by the greater weight of evidence that Warner & Edwards, and not Edwards & Wood, were to pay for the work in question.
¶12The judgment is reversed and the cause remanded.
¶13Judgment reversed.