The propriety of rejecting this testimony is the only question; and to us there seems to be but little difficulty in it. The contract between McCarty and Simms formed no part of the contract between M’Carty and Osborne, notwithstanding their exact resemblance in their terms. M’Carty and Osborne, by verbally agreeing to perform for each other the stipulations in the written contract, did not thereby make a written contract. And a reference to the contract of Simms, for ascertaining the contract of Osborne, has no more effect upon the case'than a memorandum made by Simms, or any other person, at the time of the contract. If, at the time of making a parol contract, a witness present makes a memorandum of the particulars of the contract, which is read over by both parties, who thereupon agree that those stipulations shall be their contract, — there can be no doubt but the witness may refer to that memorandum, as containing the agreement of the parties. Nor would the making of the memorandum alter the nature of the contract, or require any alteration in the pleadings. And the case would be the same, if the memorandum had been previously written by the v^tness or any other person. So, in this <Ae, the contract betweevhM’ Curly and Simms, as it related to^rie contract b e t we e ájf* rgn d\Os & orne, remained as no more than a memoranda^ of the.-laífer agreement, and did not affect the nature of that agreement.

There is some small difference pe.t.wee'n the contract thus attempted to be proved, and the conract. ¿declared on, but they are substantially the same. As tcuihe payment for the work — • as set forth in the declaration, and shojjffi,more specifically in the proof of the former contract — it would seem to be more valuable to Simms thán Osborne, inasmuch as it included, the payment of a note and ju'd^i^T^|| outstanding against Simms. This might be a ground to presnmeflj^at Osborne did not make this contract, or agree to it in these particulars; or it might be the *327foundation of a claim in him, if he did the work, to have something in payment equally valuable; but this does not militate against the admissibility of the evidence.

The judgment is reversed;, and the verdict set aside, with costs. Cause remanded, &c.