¶1delivered the opinion of the court.
¶2This case was heretofore submitted to the court, and an opinion prepared by Judge Ewing, in which Judge Nap ton concurred, but no judgment was entered. The parties, be*427fore knowing what that opinion is, have agreed that judgment may be entered in accordance with it.
¶3Judgment below is therefore reversed and the case remanded.
¶4The instructions asked by the defendant as to his liability under the statute of frauds were proper, and should have been given. The evidence tended to prove that the horse in question, although the property of defendant, was, when the account sued on accrued, in the possession and under the control of Mannhardt and Schweikler, who got him from defendant on trial, with a view to a purchase; that while they had him so in possession, he was kept tjy Deegan for them, and not for defendant, and that the account was charged, and credit given to them, and they treated as the debtors. A promise, therefore, by the defendant, not in writing, to answer for the debt would not bind him. If the account sued on were a debt of Mannhardt and Schweikler, as the evidence tended to show, no action would lie against the defendant on such a promise.
¶5Judgment reversed and the cause remanded.