GOLDTHWAITE, J.
1. The decisions made by us in Lazarus v. Shearer, 2 Ala. Rep. 718, and Deshler v. Guy, 5 Ib. 186, have no influence on this case, for the reason that no attempt is made here to plead the writing offered in evidence. If the special count had set out „the instrument, and averred it was made by the defendants under the name of G. N. Ulrick, then, under those decisions, as well as that of Fowlkes v. Baldwin, 5 Ala. Rep. 705, it is quite probable they would have been concluded, unless the execution by them, in law as well as in fact, had been denied by oath. But nothing more is stated in the special count, than a written contract [531]*531by the defendants, as partners under the firm name of G. N. Ulrick & Co. The writing in evidence is prima fade that of G. N. Ulrick, alone. It is difficult to suppose a more obvious instance of variance. See in connection with the subject, Stackpole v. Arnold, 11 Mass. 27; Prontz v. Stanton, 10 Wend. 272; Emby v. Lye, 15 East, 7; U. S. Bank v. Binney, 5 Mason, 176; Ethridge v. Binney, 9 Pick. 272.
In our judgment, the court should have given the instructions asked for.
Judgment reversed, and cause remanded.
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