Appellants in October, 1907, made a verbal contract with appellee, whereby they purchased of him the right to pasture cattle upon his fields and to feed them upon the hay stacked thereon, such rights to extend until March 1, 1908, In addition to furnishing the pasturage and hay, appellee was at his own expense to disk and sow the fields in barley, and to properly irrigate the same, in order to produce further feed thereon for the cattle of appellants. The agreed price was $725, $100 of which was paid at the time of the making of the contract. Appellants claim that, by the terms of the contract, they were to pay $100 at the making thereof, $300 January 1, 1908, and the balance March 1, 1908, and that the fields were to be disked and sowed during the month of November, 1907. The appellee claims that, when the contract was made, nothing was said as to the time when the *313amount agreed upon was to he paid, but at the time the contract was made $100 was paid to him upon account. He further claims that no time was specified at which he was to sow the barley, except that it was to be after each field was pastured off, and that he complied fully with his contract. Appellants were to remove the cattle to other pasture until the barley was sufficiently grown for feed. On November 29, 1907, the pasturage in large part having been used, appellants sought to remove the cattle to other pastures, but appellee refused to permit their removal without a further payment being made, claiming a lien thereon for pasturage. On December 7th, appellants instituted this action to replevin the cattle and to recover damages for wrongfully detaining them. By way of special damages it is alleged that, by reason of the wrongful detention, because of the poor pasturage, the cattle were greatly reduced in flesh, to the injury of appellants in the sum of $50 per day for each day that the cattle were so wrongfully detained. For a second cause of action appellants claim damages in the sum of $250 for the failure of appellee to disk and sow the fields during the month of November. In his answer, appellee, after a general denial, set forth his understanding of the contract, as above indicated, and by way of cross-complaint demanded the balance of the contract price, $625. The case was tried to a jury, and a verdict returned in favor of the appellee upon his cross-complaint in the sum of $450.

Appellants make numerous assignments of error, the first of which relates'to the action of the court in sustaining objections to certain hypothetical questions propounded by them to witnesses. Two of these questions call for the opinion of witnesses as to the average increase in weight the cattle would have gained upon first-class feed during the period from December 1st to January 15th. Under the pleadings and evidence in this case we do not see how the answers to these questions could have been material, and are therefore of the opinion that the objections to their materiality were properly sustained. The other questions sought the opinion of a witness as to the effect upon cattle of keeping them for ten days upon “first crop” hay, without green pasturage. Objections that the questions assumed the existence of facts not in evidence were sustained. " There is testimony in the record that cattle will not do as well upon “first crop” hay as upon that *314harvested from later crops, hut at the time these questions were asked there was nothing in the record showing that the hay upon which the cattle were fed while detained was “first crop” hay, nor did the questions correctly state the period that elapsed from the time appellee refused to permit the cattle to be removed on November 29th until they were replevied on December 7th.

•The court instructed the jury that if the consideration for the pasturage, hay and services in sowing the barley was to be paid in installments, as claimed by appellants, there was nothing due under the contract at the time the cattle were sought to be removed, and the appellee had no right to retain the custody of the cattle, but if the contract was that the entire amount was payable at the time the cattle were placed upon the pasture, or if nothing was said as to when it was to be paid, then appellee had a lien upon the cattle for the entire amount, and was within his rights in refusing to permit their removal. The testimony of appellee is to the effect that at the time the contract was made nothing was said as to when payment was to be made; that $100 was paid him to bind the bargain; that he was to disk and sow the fields as soon as the pasturage then growing was eaten off; and that it was contemplated that the cattle should be removed to and kept upon other pasture until he had completed disking and sowing the field, and until the barley had sufficiently grown to afford further pasturage. If the contract had been for the pasturage and hay alone, there would be no difficulty in this case. The contract price would have been payable immediately upon appellants taking possession, and appellee, under his lien, could have retained the cattle until payment was made. But the contract calls for more than the delivery of possession of the hay and fields. It also calls for services to be rendered, and is entire and not separable. Appellants were to pay the lump sum of $725 for the hay and grass then growing, and for the services in disk-ing the land and sowing the barley. Appellee could not claim that his part of the contract had been performed until all had been done that the contract called for. We need not determine the extent of appellee’s lien; for, having agreed that the cattle might be removed from his possession before the money was due, he had waived his right to retain them. It does not necessarily follow that he had no lien, nor that the cattle, while re*315moved from his custody, were not subject to his lien, so long as they remained the property of appellants, but simply that he had contracted away his right to retain possession of them.

In our opinion error was committed by the trial court in instructing the jury in effect that, if nothing was said at the time the contract was made as to when the money should be payable, it became and was payable at the making thereof.

The judgment of the lower court is reversed, and the cause remanded for a new trial.