M'Gilvery

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

This appeal is prosecuted from the order of the court below, granting a new trial. The only question for our consideration *271 is, whether Chapman should have been joined as a co-plaintiff. It is evident that if the plaintiff relied upon the original contract between Chapman, himself, and the defendants, he could not sue without joining Chapman.

There is, on the other hand, no sufficient proof going to establish the alteration of the original or the substitution of a new and independent contract, and even if there was, the instructions refused by the court in relation thereto would be error.

Judgment reversed, and new trial ordered.