The opinion
NaptoN, Judge,
delivered the opinion of the court.
The third instruction asked by the defendant in this case, or something equivalent thereto, should, we think, have beeii] given to the jury. There was certainly evidence from which a jury might have come to the conclusion that Rice’s offer to give him his note for twenty-three dollars, if Brown would leave the Barton farm on a day named, was a mere promise, not a contract. To convert a promise into a contract, there must be the assent of the promisee, and until that is given the promiser may retract. The evidence was that Brown did not accede to the defendant’s proposition, but asked for time to consider it. Whether time was given, and within the period designated the plaintiff closed the contract, was a matter for the jury. If Brown was not bounpl, neither was Rice. But this view of the case was not left' to the jury.
Judgment reversed and case remanded;
the other judges concur.