Wise

Action of replevin to recover two thousand four hundred sheep, or for two thousand five hundred dollars,. *149 the value thereof, in case a delivery cannot be had. The cause was tried by the court without a jury. Written findings were waived. Plaintiffs had- judgment for possession of eighteen hundred and twenty sheep, and if a delivery could not be had, for seventeen hundred and forty dollars, etc. John L. Collins, one of the defendants, appeals from the judgment and from an order denying his motion for a new trial.

The first point urged in favor of reversal is based upon a ruling of the court admitting in evidence an agreement between plaintiffs and Bertrand Rhine, assignor of defendant Collins, in reference to a band of sheep called the “Rodriguez sheep.”

The substance of this agreement is that Christy & Wise transfer to Rhine a band of sheep consisting of nineteen hundred ewes and seven hundred lambs, more or less, at one dollar and fifty cents per head, Christy & Wise to retain the ownership thereof until they were paid for. Rhine was to run the sheep at his own expense and dispose of them, and all moneys above the cost price ■of one dollar and fifty cents per head realized…