¶1By the Court.
¶2delivering the opinion.
¶3In the first place, it is not satisfactorily proven that there was any special contract. Jesse Hightower is the witness that proves it, and yet he testified that some time in the year 1857 plaintiff came to him and wanted him to draw up an agreement in writing between him and defendant, and he told plaintiff he would do so, provided defendant was there to agree to it; that there was no use to draw it unless both *542parties were there to agree ; that the other might differ when he saw it.
¶4How I submit, that it does not look as if this witness had witnessed a valid agreement between the parties for the year 18'57, previous to this time.
¶5There is another remarkable thing in the defendant’s case, to-wit: the discrepancy between the special contract, plead by him and proven by this witness, Hightower; according to the former, the plaintiff was to have one-eighth of the crop; by the latter, the defendant was to furnish “hands, tools, lands, stock, etc.” and the plaintiff was to have for his compensation a hand’s part—the lands, tools, stock, etc., to be counted a hand. It may be, that reckoned in this way, it would constitute an eighth—still it does not appear that it is so—and there is wanting the necessary amount to make it so.
¶6The plaintiff’s case is fully made out by Thomas J. Heard, whose testimony in rebuttal is contradictory to that of Hightower.
¶7From all these circumstances, the jury were justifiable in finding that the special contract was not satisfactorily proven, and they might award to the plaintiff what his services were reasonably worth.
¶8Let the judgment be affirmed.