We have carefully reviewed the testimony in the light of the reargument, and are of the opinion that there is a substantial conflict as to whether Sturgis ever made any agreement for the subsequent payment of the one thousand one hundred and. twenty dollars, or knew of one being made by Williams.

In the complaint it is alleged that the contract was made “ on or about the 13th day of December, A. D. 1858.” The plaintiff testifies: “ This contract "was made with defendants a few days before the date of the deed from William F. Peabody to them, which is dated December 15th, 1858. It was made at my residence, which was then at said Town of Vallejo. Defendants came there at that time and walked with me over said tract of land. * * * After walking-over the land we walked back to my house, and I then sold them, in the presence of my wife, Mrs. Price, the undivided quarter of said tract, amounting to thirteen acres, for the sum of nineteen hundred and fifty dollars (|1,950). Defendant, Sturgis, said they would have to make some arrangement for the cash payment which was to be made, and that they, defendants, would meet me at B. C. Whitcomb’s office *597at Benicia in a few days, when I could have the deed for said interest executed from Peabody to them.”

'Defendant Sturgis testified that he never knew of the memorandum until a year or a year and a half ago. “That was the first time that I ever heard of it. * * * I never had any conversation with the plaintiff about the price of the land.

* * * The only information I ever got as to the price of the land was from Mr. Williams, before I went to Vallejo, and after I got back, as near as I can recollect, he told me it would need from eight hundred to one thousand dollars to make the purchase, and asked me if I had the money.

* * * I went to Colonel Price’s residence near Vallejo, about the 13th of December, 1858, for the purpose of examining the laud, at the request of Mr. Williams, with a view to purchase it. I do say the terms or price of the land was not mentioned on the land, or at the plaintiff’s house, or on that day. STo one mentioned the price or terms except Mr. Williams, at any time, and he never on the. lands or at Mr. Price’s house.”

We are unable to see how the conflict could be more direct and certain. It may be, if we were sitting as a nisi pritis Court, that, looking at all the circumstances, we should find that the defendant Sturgis, notwithstanding the conflict, made the contract as charged. The settled rule of this Court, however, is not to disturb the findings of the Court below in such a case. The judgment heretofore ordered must therefore stand as the judgment in the case.

Judgment and order affirmed as to the defendant Sturgis, but reversed as to the defendant Williams, and cause remanded for a now trial as to the last named defendant.