Appeal from a judgment on a jury verdict in favor of plaintiff. Affirmed, with costs to plaintiff.
Defendant urges that the court erred in 1) admitting hearsay and conclusion evidence, and 2) that as a matter of law, there was no acceptance of an oral offer to kill ewes at *37350^5 a head at a slaughter house. As to 1), the voluminous record reflects no prejudice.
As to 2) : We conclude that the jury’s verdict is not vulnerable to attack, since on controverted testimony, easily it could be justified.
' The pleadings and examination of witnesses in this case were highly protracted, and somewhat unnecessary. But the nub of the case is whether the defendant, Great Western Packing, assumed to kill ewes at 50{S per head. This defendant or its alter ego billed plaintiff for an accepted payment of 50‡ for such service. Defendant, however, says it did not mean what the billing reflected, but meant $3.00 instead of 50‡ per head. The jury chose to believe otherwise on controverted evidence. Arbitrarily we cannot upset such a verdict.
Some debate concluded that a ewe was not a lamb, but was a sheep that had given birth to a lamb. We are not prepared to determine the status of a sheep that gave birth, miscarried or was inconceptual in the first instance, since this would be judicial biologism, — and we have enough difficulty with judicial legislation. We think the evidence, including the billing, irrespective of the sex or potentialities of sheep, substantiated the jury’s verdict.
McDonough, callister, crock-ETT and WADE, JJ., concur.