¶1delivered the opinion of the court.
¶2The parties to the present suit having endorsed an accommodation note for one of their friends, and not recollecting which of them was the first endorser, entered into an oral agreement that each of them should support one half of the loss, if there was any. The plaintiff having paid one half of the note, but discovering he was the last endorser, brought the present suit to recover the money thus paid. The defendant has appealed to this court from the judgment rendered against him.
¶3He shows that, some time after the agreement had been entered into between them, the plaintiff required that it should be reduced to writing, to which the defendant assented. This agreement was, however, never carried into effect by actually reducing it to writing. The defendant’s counsel contends that the district judge erred in considering the oral agreement as annulled by the subsequent understanding that it should be reduced to writing, or at least as suspended until this was done.
¶4It appears to us that the judge a quo erred in his decision. The oral agreement was perfect and binding on both parties, when the proposition to reduce it to writing was made by the plaintiff to the defendant. This proposition, and the *226assent thereto, must be considered as made with the view to secuve the performance of the oral agreement, by giving to ^ a iess mutable form, rather than to annul or suspend it. Had the parties proceeded to the confection of the writing, r r , . i neither would have had the right of insisting on the change or alteration of an iota of the agreement. Neither could .. . - insist on any thing but a correct and faithful transcript of tUe agreement, and in case of a disagreement in this respect, they would have to remain in possession of the right of establishing the first agreement by any evidence in his power, or by an appeal to the conscience of his adversary. His failure “ight be the consequence of his inability to establish the contract, not from its being annulled or suspended by the _ , , . agreement to reduce an oral contract to writing.
¶5It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that ours be for the defendant and appellant, with costs in both courts.