Witherby

This is an action upon two promissory notes, executed by defendant and payable to plaintiff. The execution of the notes is not denied, but defendant sets up in his amended answer and cross-complaint two contracts entered into between the parties to the action, one of which bears date May 8th, 1870, and the other the 26th day of August, 1875.

*11 The first of these contracts recites, that the party of the first part (plaintiff) has furnished and delivered 363 head of cows to the party of the second part (defendant) for the term of five years, the same to be kept and taken care of by defendant, and at the expiration of the period of five years to be redelivered to the plaintiff, “ together with one-half of the increase.”

The second contract, after referring to the first, and enumerating the number of cattle delivered the defendant thereunder, proceeds as follows: “And whereas, the term for which said stock was let having expired, both parties wish to renew the same contract and extend the time thereof: Now, therefore, it is hereby agreed between the parties hereto, that the party of the second part shall keep and retain all of the original stock, and the increase thereof now due…