Ferguson

This action was brought to recover damages for the failure to redeliver certain cattle, being part of a herd owned by the plaintiff which the defendant agreed to pasture. The latter filed a counterclaim for pasturage and commissions together with labor furnished and money expended for plaintiff’s benefit.

According to the findings the defendant failed to redeliver or account for fifty-seven head of stock of the value of $2,233.25. It was also found that defendant was entitled to $844.75 under his counterclaim, and judgment was entered in favor of plaintiff for the difference, viz., $1388.50'.

The defendant, who has appealed from the judgment and an order denying a motion to set aside the judgment and enter a judgment upon the findings in his favor, contends that the findings in favor of the plaintiff are unsupported; that the theory on which the case was tried and decided was erroneous, and also that the court erred in striking a certain affidavit from the reporter’s transcript on appeal.

The complaint alleged the delivery of the cattle to the defendant pursuant to a contract in writing whereby the latter in consideration of the payment of certain amounts per head agreed to…