Tbe Tilling of the court below was erroneous. The fact of the bargain between Fifield and Duel was a material fact, and its terms could only be proved by showing what was said and done between the parties. This is the’ only way in which any contract can be proved; and it can make no difference who else was present or absent, as such presence or absence could in no way bear upon the bargain, which was an independent fact, on which the rights of the parties . depended.

The judgment must be reversed, with costs, and a new trial granted.