#### Frederick Bacon *v.*Titus Daniels.

1. Where a contract, not required by the statute of frauds to be in writing, has been reduced to writing and signed by one contracting party only,’ it is error to treat such contract as of no validity for the reason that it is not signed by the party to be charged.

2. An agreement between the parties to a contract and a third person, whereby one party is released from the obligations of the contract, and' the third person substituted in his stead, is a *novation,*and' requires no further consideration than such release and substitution.

*280Error to the District Court of Erie County.

The action was originally brought by the defendant in error, against the plaintiff in error Bacon, S. N. Hazen, ¥m. A. Braman, Edward F. Webster, Chas. W. Horr and Sidney S. Warner. Of these, Bacon and Hazen were the only defendants served with summons.

The plaintiff alleged in his petition, that in March, 1875, the defendants entered into a contract with him, by which they agreed to purchase all the milk which plaintiff should deliver from his farm during the season of 1875, at one cent per pound. That in pursuance of said agreement, he had delivered to defendants, prior to September, 1875, 56,715 lbs. of milk, foi which he had received on account, $239.19, and that defendants then refused to receive any more milk, and to be further bound by their contract. He asked to recover the balance due under the contract.

The defendant Bacon answered, denying that he ever made the alleged contract with plaintiff, or any other contract for the purchase of milk. Hazen was in default for answer.

At the trial, evidence was introduced tending to. show that in the latter part of March, 1875, Bacon and Hazen came to plaintiff, and proposed to purchase his milk on the terms stated in his petition, and that shortly thereafter, plaintiff called on Hazen and notified him of his acceptance of the proposition. It was further proved, and not disputed, that prior to the middle of May, Hazen told plaintiff that Bacon had sold out all his interest in this and other contracts to defendants Braman, Horr and Warner, and that plaintiff, at the request of Hazen, then signed a written contract, thereby agreeing to deliver all his milk during the season of 1875, to Hazen, Braman, Horr <& Warner, and delivered the paper to Hazen. It was not pretended by any one that Bacon was a party named in this agreement.

The defendant Bacon asked the court to charge the jury, that if they found that such a contract was made between plaintiff and Hazen, Braman, Horr and Warner, their verdict must be for the defendant. This the court refused to do, for *281the reason, among other things, that the contract in evidence was signed by one party only; and did' charge the jury that if Bacon did make the original agreement, it could not be rescinded without a consideration.

The jury thereupon found for the plaintiff.

A motion for a new trial was overruled, and judgment was rendered upon the verdict.

This judgment was afterwards affirmed in the district court.

*H. & L. H.*Goodwin, for plaintiff in error.

*Taylor &*Phinney, for defendants in error.

Longworth, J.

It might, perhaps, be enough to say of this case, that a recovery has been had for breach of a different contract from that sued upon. It is a well established principle, however, that where parties choose to try their case upon a supposed issue not in reality raised by the pleadings, and the case is fairly tried, submitted and decided upon such supposed issue, it is too late to urge in a court of error that the issue tried was not made by the pleadings. See *Larimore*v. *Well’s Adm'r,*29 Ohio St. 13, 17.

If we treat the issue to have been as announced by the court below, we can see no valid reason for refusing to charge as requested by the defendant. The substituted contract was not one of that class which must by law be in writing, and the fact that the paper given to Hazen was signed by one party only, or not signed by all, would in no way affect the validity of the contract. That such an agreement was made is undisputed ; that Hazen was authorized -to contract for Braman, Horr and Warner does not appear from the evidence, but is alleged by plaintiff in his petition, which declares upon the contract to which Braman, Horr and Warner were parties. It cannot be presumed in his favor that his own allegations are untrue.

■ Like’ other contracts, the one in question requires a consideration to support its validity, but that consideration appears in the release of one party and the substitution of an*282other. The existence of-the contract being established the consideration is self evident. As a statement of an abstract proposition the charge of the court was correct, but as applied to the case its effect was to instruct the jury that the substitution of the latter for the former contract was of no validity unless accompanied by a consideration *outside*of the release and substitution itself.

It is contended, that the exceptions to the refusal to give the charges asked, and to the charge as given, being general, this court cannot examine the errors complained of. We regard this proposition as untenable. The whole case is before us, and it is apparent that the jury were misled by erroneous instructions. See *Baker*v. *Pendigrast,*32 Ohio St., 495.

*Judgment reversed*