delivered the opinion of the court.

The stipulation by Badeau as to losses on customers with whom he dealt for the appellant, is not within the statute of frauds. His agreement was a part of the original contract under which he was to sell the goods, and was in no manner a collateral agreement. See Timberlake v. Thayer, 76 Miss., 76, 23 South., 767. Besides, it may be observed that it was not for the appellee to take one-half the gross profits, and then object to paying his half of the losses; the whole subject-matter being embraced in one single contract.

We think the proof of the losses is sufficiently clear to have been permitted to go to a jury. The thing to be ascertained was, not whether the customers were insolvent, but whether losses had been sustained; and, we think the evidence on this subject is competent, and of -sufficient weight to have been submitted to a jury. The appellant should have been permitted to show losses' by way of recoupment. ' The court, therefore, erred in giving the peremptory charge to find for the plaintiff.

Judgment is reversed, and cause remanded.