¶1The opinion of the court was delivered by
¶2We think the defendant is entitled to-judgment on the report. The question in the case is, whether, by the terms of the written contract in relation to the sale of the farm, the plaintiff was bound to fodder the defendant’s cattle, as a part of that contract, and without any new consideration, or compensation; and whether it was to -be done without compensation or not, was a point about which the parties were at issue. It was the duty of the plaintiff, as he was the keeper of the contract, to have it at his command. Before the deed was executed and delivered to the defendant, he called upon the plaintiff for the writing which contained *799the terms of the bargain, and the plaintiff said he had lost it. The parties could not agree upon the terms of a substitute in relation to the foddering, and, before the deed was delivered, the plaintiff gave the defendant the contract by which he obligated himself to produce the same, or take the defendant’s recollection and construction of it. This agreement was made as a part of the transaction before the deed was delivered, and it cannot be regarded as a nudum pactum, and the defendant was fully justified in acting upon it. We think, then, the plaintiff must stand to the written contract as recollected and understood by the defendant.
¶3Judgment of the court below reversed, and judgment for the defendant.