This action was brought upon an alleged contract for the pasturing of 260 sheep at “ three cents per head per week.” The' plaintiff gave evidence tending to prove the alleged agreement as to the price, the substance of which was that a few days after the sheep were turned into the pasture, he saw the defendant and told him that he should charge him three cents, per head per week, that defendant said : ‘‘It is a big price and run one’s own risk.” To which plaintiff answered that they seemed to be all large sheep, and defendant then turned and went into the store (on the steps of which the parties were standing), and nothing more was said about it.
As the sheep were kept subsequently to this conversation for several weeks in the plaintiff’s pasture, it follows, that if the jury believed plaintiff’s statement of this conversation, they would be justified in finding the alleged special agreement as to price, because by continuing to keep his sheep in plaintiff’s pasture, the defendant’s assent to the terms might be inferred as to price. The defendant denied having the conversation as to price, as stated by plaintiff, and gave evidence to show that the pasturing was worth much less than three cents per head. On his cross-examination stated in substance, that he never had paid over two cents per head; that the sheep were taken from plaintiff’s pasture to a"farm owned by one White and occupied by one Faucett, where they were kept several weeks, and that he paid White *351two cents per head per week; and he was asked several questions relative to what White stated as to his charge for pasturage, which elicited nothing of any moment.
The question whether the sheep were pastured at the agreed price of three cents per head or not, depended almost wholly, if not altogether, on which of the parties to the suit the jury believed.
After the ‘defendant rested his case, the plaintiff called William W. White, who testified to the pasturing of 240 of the sheep on his farm occupied by Faucett, late in the season, and that he and Faucett were partners in the pasturage. The plaintiff’s counsel then put to him the following question : “Did you understand from Faucett the price per head per week that defendant was to pay Faucett and White?” Objected to as being irrelevant and hearsay; objection overruled. Answer. I did. He replied to me, 240 wethers at 2J cents per head per week, and the time which I took from my books. Defendant reports more sheep and less time than Faucett in his bill to me.
Q. How many more sheep did defendant report than Faucett, and how much more time than defendant. Objected to same as before, and same ruling.' He reported 14 more sheep, and Faucett six day’s more time than defendant did.
This testimony was clearly irrelevant and immaterial upon the question of the contract, and for that reason the county court has regarded it as an error that could have worked no injury. But the court overlooked the fact that a collateral issue of credibility was raised in the case,“between the plaintiff and defendant, and that the determination of the main issue depended upon which of the parties was believed by the jury. For the purpose of impairing the credit of defendant, the statements which he had made on his cross-examination were allowed to be contradicted, not by the testimony of Faucett, but by his statements to his partner White. The testimony which, was given on that point, was mere hearsay, for he knew nothing of any arrangement as to the price *352of pasturing defendant was to pay, except what Faucett stated, nor as to any discrepancy between defendant and Faucett as to the account for that pasturage. Yet Faucett’s statement which tended to contradict defendant’s oath, was laid before the jury under a ruling of the court, and it isimpossible to say that the’ contradiction between defendant and Faucett thus improperly proved, may not have turned the scale in the conflict of credibility between plaintiff and defendant. I think the admission of the answers of White to the questions objected to was an error which cannot be be overlooked; and that the judgments below must, therefore be reversed.