Mr. Justice Clarkdelivered the opinion of the court.
Abstract of the Decision. 1. Appeal and error, § 1468—when error in admission of evidence prejudicial error. In an action on an oral contract wherein it was alleged that defendant agreed to pay or cause to he paid to the plaintiff the purchase price of certain lands bought by plaintiff from another if plaintiff should become dissatisfied with his contract, admission of evidence relating to quality of the land held prejudicial error, where the evidence as to whether the agreement was made is equally balanced. 2. Appeal and error, § 1691*—when error in admission of evidence not waived. Error in the admission of testimony on behalf of plaintiff held not waived by defendant offering evidence in rebuttal and cross-examining plaintiff’s witnesses.