Suit was brought upon an open account, the defendant admitted the correctness of the account, and pleaded that the *651plaintiff had become indebted to him by reason of the breach of a certain contract for the shipment of other goods; the defendant alleged that the contract had been lost, and undertook to establish the contract. The evidence for the defendant was to the effect that he could but estimate the goods enumerated in the original contract, and there was no positive evidence from the defendant as to the exact items named in the contract. The evidence of the plaintiffs #was positive that no such contract as the defendant sought to establish was entered into; that they had no knowledge of any such purported agreement. The jury found a verdict in favor of the defendant.
From a careful examination of the record it appears that the defendant is unable to show a positive contract, or to show the essential of a contract,—that the minds of the parties were in accord as to the same agreement. The verdict for the defendant was without legal evidence to support it, and it was error to overrule the motion for a new trial.