#### M’Carty *v.*Osborne.

An agreement of *B.*under seal, to build a bouse for *A.*on certain terms, being abandoned, *C.*examined it, and agreed by parol with the latter, in presence of the former, to do the same work, and be substituted in *B.’s*place as to the terms and stipulations of that agreement. Afterwards, *A.*sued *C.*in special assum psit for a breach of his contract, *jfield,*that B., in giving testimony relative to the contract between the parties, might read to the jury his own previous agreement with the plaintiif, although no notice of it had been given to the- defendant, nor was it specially referred to in the declaration.

JBRROR to the *Fayette*Circuit Court. — Special assumpsit for not building a house, agreeably to contract. Plea, the general issue. A bill of exceptions, substantially as follows, was taken at the trial. Be it remembered that an, &c. the plaintiff called *Stephen Simms,*a witness, to support the contract in the declaration alleged; and offered to prove by him that there had been a prior contract in wj¿ting between himself and the witness, relative to building the same house, &c. mentioned in the declaration, which contract had been abandoned; that the witness heard the contract between the plaintiff and defendant; that the following contract between himself and the plaintiff, to wit, [here the agreement jtnder seal, executed by the witness and the plaintiff, is set #ut,] was examined and read by the. plaintiff and defendant; and that the defendant then agreed *326to substitute himself in place of the witness as to the doing of the work, the manner and time of doing it, and as to all the terms and stipulations therein contained. To which testimony the defendant objected, because the plaintiff had not given notice of the previous agreement, nor relied in his declaration on the defendant’s assumpsit to perform it. The Court sustained the objection, to which the plaintiff excepts, &c. .Verdict and judgment for the defendant.

Holman, J.

The propriety of rejecting this testimony is the only question; and to us there seems to be but little difficulty in it. The contract between *McCarty*and *Simms*formed no part of the contract between *M’Carty*and Osborne, notwithstanding their exact resemblance in their terms. *M’Carty*and Osborne, by verbally agreeing to perform for each other the stipulations in the written contract, did *not*thereby make a written contract. And a reference to the contract of *Simms,*for ascertaining the contract of *Osborne,*has no more effect upon the case'than a memorandum made by *Simms,*or any other person, at the time of the contract. If, at the time of making a parol contract, a witness present makes a memorandum of the particulars of the contract, which is read over by both parties, who thereupon agree that those stipulations shall be their contract, — there can be no doubt but the witness may refer to that memorandum, as containing the agreement of the parties. Nor would the making of the memorandum alter the nature of the contract, or require any alteration in the pleadings. And the case would be the same, if the memorandum had been previously written by the v^tness or any other person. So, in this <Ae, the contract *betweevhM’ Curly*and *Simms,*as it related to^rie contract b e t we e ájf* rgn d\Os & *orne,*remained as no more than a memoranda^ of the.-laífer agreement, and did not affect the nature of that agreement.

There is some small difference pe.t.wee'n the contract thus attempted to be proved, and the conract. ¿declared on, but they are substantially the same. As tcuihe payment for the work — • as set forth in the declaration, and shojjffi,more specifically in the proof of the former contract — it *would seem*to be more valuable to *Simms*thán *Osborne,*inasmuch as it included, the payment of a note and ju'd^i^T^|| outstanding against *Simms.*This might be a ground to presnmeflj^at *Osborne*did not make this contract, or agree to it in these particulars; or it might be the *327foundation of a claim in him, if he did the work, to have something in payment equally valuable; but this does not militate against the admissibility of the evidence.

*Caswell*and Rariden, for the plaintiff.

Ray, for the defendant.

*Per Curiam.*

The judgment is reversed;, and the verdict set aside, with costs. Cause remanded, &c.