WILLIAM E. DOYLE, Circuit Judge.
This case involves distinct but not unrelated claims filed and prosecuted by appellee. The first of these involved an alleged balance due for sheep sold to appellant ; a verdict in the amount of $9,797.06 was awarded by the jury. The second claim was for professional services allegedly rendered by appellee in connection with the nerve gas poisoning of appellant’s sheep by the Army at Skull Valley, Utah in March 1967. The recovery on this second claim was in the amount of $28,090.00, which sum included interest. The alleged errors relied on by appellant for reversal involve certain of the court’s instructions and, at the same time, the failure of the court to instruct in accordance with Anschutz’s theories. It is necessary to summarize the facts somewhat extensively in order to fairly consider the parties’ contentions.
I.
Dr. Osguthorpe was shown to have been a veterinarian who also had a sheep ranch. In 1967 he obtained an interest in a flock of 2,300 sheep of J. R. Broadbent by providing a summer range. In the middle of the summer he, with the authorization of Broadbent, contacted Alvin Hatch, manager for An-schutz, as to possible purchase of the sheep. The testimony as to what occurred in connection with this sale is diametrically opposed and raises questions as to the terms of the sale.
Osguthorpe testified that when he met with Hatch in the summer of 1967 at Kimball Junction, Utah, he and Hatch orally agreed on a flat price of $25.00 per head. Hatch, on the other hand, insisted that the price agreed upon was based on the age of the sheep — $28.00 for two-year-olds, $23.00 for three-year-olds, $18.00 for four-year-olds and $14.00 for five-year-olds and above. Hatch further said that he made a memorandum of these prices,1 and that Osgu-thorpe agreed to draw up a written contract to such effect at a later time. Os-guthorpe’s testimony was that the first mention of any price per age was made in a written contract which the livestock company submitted to him in the fall of 1967. According to his further testimony, neither he nor Broadbent signed this.
The livestock company’s office manager at Wasatch, Utah, one Miles Williams, testified to a meeting on September 12, 1967 at Wasatch. Both Osguthorpe and Hatch were present, and this was for [999]*999the purpose of signing a contract. It was not, however, signed since it was determined that the signature of J. R. Broadbent was necessary. Instead, a contract was prepared and given to Os-guthorpe for Broadbent’s signature. On that occasion, according to Williams, a bill of sale listing the number and price of the sheep per age was given to Osgu-thorpe who made no protest about price.2 Hatch, on the other hand, testified that before payment was made by issuing a second cheek to Osguthorpe, there was a telephone conversation in which Osguthorpe said that Broadbent had signed the written contract.
An initial payment in the form of a check for $2,000.00 in which J. R. Broadbent was the payee was given on behalf of the livestock company on September 12, 1967. Inspection of the sheep took place in October, and 1,674 head of the 2,300 flock were delivered and accepted. On November 15 a check in the amount of $31,641.00, also payable to J. R. Broadbent, was issued by An-schutz and delivered to Osguthorpe. Approximately seven months later Osgu-thorpe demanded an additional $8,029.00 from the livestock company, claiming that this was the unpaid balance due. Anschutz refused to pay this, and whether this amount was due and owing was the first dispute tried. The sheep were in fact mouthed and the ages of the sheep determined by Anschutz before payment was made. Osguthorpe, however, plays down the significance of this circumstance because he maintains this was necessary for eliminating the old sheep which could not make it through the winter.
At the trial Osguthorpe presented two alternative theories. First, that there was an oral agreement at Kimball Junction and, secondly, that if there was no meeting of the minds he was nevertheless entitled to recover in the amount demanded on a quantum meruit basis. Anschutz’s contentions were somewhat less clear. It relied on the execution of a written agreement based on the testimony outlined above, including the alleged admission by Osguthorpe that Broadbent had signed a contract. When all of the evidence was in, the attorneys for An-schutz advised the trial court that they wished also to rely on an oral agreement entered into at Kimball Junction keying the price to the age of the sheep, but the trial court stated in response that the company’s only evidence was in support of a written contract, a writing which had not been produced and which, according to the further ruling of the court, could not be considered since there had not been a delivery.
In outlining the issues as a part of its jury charge, the trial court described the Osguthorpe contention as being that Hatch orally agreed to pay the sum of $25.00 per head regardless of age and also told the jury that if the jury found that there was no oral agreement as to price or no written agreement as to price, that the plaintiff was entitled to recover the fair and reasonable value of the sheep at the time of their delivery in the fall of 1967. In setting forth the contentions of the defendant, the court merely said that the defendant denied that its agents or employees or that its Utah superintendent, Hatch, orally agreed to pay $25.00 per head. The court continued:
* * * The defendant instead says that the agreement discussed was not for $25 a head, but it was a different price for different age groups of ewes. And the defendant further claims in this lawsuit that the parties did not intend to enter into an agreement up there in Summit County as to price nor until it was written down on a piece of paper, signed by the plaintiff. The defendant claims there was [1000]*1000such a written agreement, but the defendant did not produce a written agreement at the trial.
Thus, the sole contention of the defendant submitted to the jury was the contention that a written agreement was intended. The jury was not even told that it was at liberty to decide for the defendant if the jurors found that the plaintiff had failed to prove any agreement, or if the jury found that there was in fact an agreement based on the age of the sheep or if it determined that the parties entered into a parol agreement evidenced by the bill of sale and the submitted writing.
Moreover, the court’s view as expressed in its definitive ruling that the contract to be valid and enforceable had to have been delivered back to Anschutz was a mistaken view of the law on the subject since delivery is not necessary in the absence of an express intention. The important factor is whether the parties arrived at a meeting of the minds.3 The view expressed by Cor-bin (see note 3, supra) is carried out by the Utah Commercial Code — derived from the Uniform Commercial Code— which recognizes that a contract can come into being as a result of either a writing or words or conduct. 70A-2-204(l) Utah Code Ann.1953. Moreover, according to § 70A-2-203, sealed instruments are not approved. The official commentary to § 203 recognizes that the parties may condition their assent on formalities, but must do so expressly.4
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WILLIAM E. DOYLE, Circuit Judge.
This case involves distinct but not unrelated claims filed and prosecuted by appellee. The first of these involved an alleged balance due for sheep sold to appellant ; a verdict in the amount of $9,797.06 was awarded by the jury. The second claim was for professional services allegedly rendered by appellee in connection with the nerve gas poisoning of appellant’s sheep by the Army at Skull Valley, Utah in March 1967. The recovery on this second claim was in the amount of $28,090.00, which sum included interest. The alleged errors relied on by appellant for reversal involve certain of the court’s instructions and, at the same time, the failure of the court to instruct in accordance with Anschutz’s theories. It is necessary to summarize the facts somewhat extensively in order to fairly consider the parties’ contentions.
I.
Dr. Osguthorpe was shown to have been a veterinarian who also had a sheep ranch. In 1967 he obtained an interest in a flock of 2,300 sheep of J. R. Broadbent by providing a summer range. In the middle of the summer he, with the authorization of Broadbent, contacted Alvin Hatch, manager for An-schutz, as to possible purchase of the sheep. The testimony as to what occurred in connection with this sale is diametrically opposed and raises questions as to the terms of the sale.
Osguthorpe testified that when he met with Hatch in the summer of 1967 at Kimball Junction, Utah, he and Hatch orally agreed on a flat price of $25.00 per head. Hatch, on the other hand, insisted that the price agreed upon was based on the age of the sheep — $28.00 for two-year-olds, $23.00 for three-year-olds, $18.00 for four-year-olds and $14.00 for five-year-olds and above. Hatch further said that he made a memorandum of these prices,1 and that Osgu-thorpe agreed to draw up a written contract to such effect at a later time. Os-guthorpe’s testimony was that the first mention of any price per age was made in a written contract which the livestock company submitted to him in the fall of 1967. According to his further testimony, neither he nor Broadbent signed this.
The livestock company’s office manager at Wasatch, Utah, one Miles Williams, testified to a meeting on September 12, 1967 at Wasatch. Both Osguthorpe and Hatch were present, and this was for [999]*999the purpose of signing a contract. It was not, however, signed since it was determined that the signature of J. R. Broadbent was necessary. Instead, a contract was prepared and given to Os-guthorpe for Broadbent’s signature. On that occasion, according to Williams, a bill of sale listing the number and price of the sheep per age was given to Osgu-thorpe who made no protest about price.2 Hatch, on the other hand, testified that before payment was made by issuing a second cheek to Osguthorpe, there was a telephone conversation in which Osguthorpe said that Broadbent had signed the written contract.
An initial payment in the form of a check for $2,000.00 in which J. R. Broadbent was the payee was given on behalf of the livestock company on September 12, 1967. Inspection of the sheep took place in October, and 1,674 head of the 2,300 flock were delivered and accepted. On November 15 a check in the amount of $31,641.00, also payable to J. R. Broadbent, was issued by An-schutz and delivered to Osguthorpe. Approximately seven months later Osgu-thorpe demanded an additional $8,029.00 from the livestock company, claiming that this was the unpaid balance due. Anschutz refused to pay this, and whether this amount was due and owing was the first dispute tried. The sheep were in fact mouthed and the ages of the sheep determined by Anschutz before payment was made. Osguthorpe, however, plays down the significance of this circumstance because he maintains this was necessary for eliminating the old sheep which could not make it through the winter.
At the trial Osguthorpe presented two alternative theories. First, that there was an oral agreement at Kimball Junction and, secondly, that if there was no meeting of the minds he was nevertheless entitled to recover in the amount demanded on a quantum meruit basis. Anschutz’s contentions were somewhat less clear. It relied on the execution of a written agreement based on the testimony outlined above, including the alleged admission by Osguthorpe that Broadbent had signed a contract. When all of the evidence was in, the attorneys for An-schutz advised the trial court that they wished also to rely on an oral agreement entered into at Kimball Junction keying the price to the age of the sheep, but the trial court stated in response that the company’s only evidence was in support of a written contract, a writing which had not been produced and which, according to the further ruling of the court, could not be considered since there had not been a delivery.
In outlining the issues as a part of its jury charge, the trial court described the Osguthorpe contention as being that Hatch orally agreed to pay the sum of $25.00 per head regardless of age and also told the jury that if the jury found that there was no oral agreement as to price or no written agreement as to price, that the plaintiff was entitled to recover the fair and reasonable value of the sheep at the time of their delivery in the fall of 1967. In setting forth the contentions of the defendant, the court merely said that the defendant denied that its agents or employees or that its Utah superintendent, Hatch, orally agreed to pay $25.00 per head. The court continued:
* * * The defendant instead says that the agreement discussed was not for $25 a head, but it was a different price for different age groups of ewes. And the defendant further claims in this lawsuit that the parties did not intend to enter into an agreement up there in Summit County as to price nor until it was written down on a piece of paper, signed by the plaintiff. The defendant claims there was [1000]*1000such a written agreement, but the defendant did not produce a written agreement at the trial.
Thus, the sole contention of the defendant submitted to the jury was the contention that a written agreement was intended. The jury was not even told that it was at liberty to decide for the defendant if the jurors found that the plaintiff had failed to prove any agreement, or if the jury found that there was in fact an agreement based on the age of the sheep or if it determined that the parties entered into a parol agreement evidenced by the bill of sale and the submitted writing.
Moreover, the court’s view as expressed in its definitive ruling that the contract to be valid and enforceable had to have been delivered back to Anschutz was a mistaken view of the law on the subject since delivery is not necessary in the absence of an express intention. The important factor is whether the parties arrived at a meeting of the minds.3 The view expressed by Cor-bin (see note 3, supra) is carried out by the Utah Commercial Code — derived from the Uniform Commercial Code— which recognizes that a contract can come into being as a result of either a writing or words or conduct. 70A-2-204(l) Utah Code Ann.1953. Moreover, according to § 70A-2-203, sealed instruments are not approved. The official commentary to § 203 recognizes that the parties may condition their assent on formalities, but must do so expressly.4
Accordingly, it was open to Anschutz to contend that there was a written contract if it was signed, even though there was not delivery, or, in the alternative, it could contend that there was an oral agreement evidenced by the draft and the bill of sale.
We do not gainsay that the plaintiff had the right to have the jury consider whether the parties intended to ultimately have a written agreement which never came into existence. So also, however, the Anschutz testimony as to an admission by Osguthorpe that Broadbent had signed the contract was pertinent to the Anschutz theory that there was a written contract embodying its price theory. Further, there was the testimony that Osguthorpe delivered the sheep With notice (the bill of sale and draft contract) that Anschutz contemplated payment according to age.
All of this evidence called for submitting to the jury questions as to whether the agreement was in truth in accordance with the testimony of the Anschutz agents, Hatch and Williams.
We note that Anschutz did not submit an instruction which specifically told the jury of its reliance on an oral contract, but, as previously noted, it did bring this matter to the attention of the court. But the judge refused to recognize this claim, apparently believing that the evidence did not justify any issue [1001]*1001other than whether a' written contract (which was not produced) had been intended. The written contract was erroneously ruled out because it was not shown to have been delivered by Osguthorpe, and the oral approach was not submitted. As a consequence, the Anschutz company was precluded from advancing any tenable defense. Under the instruction as given, the defendant was blocked out and frustrated in advancing a defense, and the jury had to decide for the plaintiff on his version of the contract or, in the alternative, on a quasi contract theory. Also, it was error for the court to refuse to give defendant’s requested instruction number nine,5 and defendant’s requested instruction number 12.6 The refusal of the court to instruct at least in accordance with these offerings further circumscribed Anschutz in the defense of its claim. This same narrow scope of the issues was repeated in the court’s charge as to damages.7
A further contention is that the court erred in receiving in evidence data furnished by defendant to the Army concerning the value of the sheep injured by the nerve gas. In our view, reception of this evidence was within the discretion of the trial court as bearing on the reasonable market value of the sheep as of October 1967 when they were delivered to Anschutz. Since the plaintiff seeks recovery on a quantum meruit basis, this evidence is relevant.8 [1002]*1002On retrial the jury should be clearly instructed that such evidence can be considered by it only to the extent that it reflects the market value of the sheep in October 1967 and, of course, only as it bears on the plaintiff’s quantum meruit theory, but if the jury finds and determines that there was an express contract, oral or written, such evidence would not have any relevance and could not be considered by it.
II.
The remaining matter is the validity of the award in the amount of $28,090.00 for services rendered allegedly to defendant-appellant incident to the prosecution of its claim against the government for the destruction in March, 1968 of 6,249 head of sheep. The prosecution of this claim by Anschutz was successful in that a settlement in the amount of $376,000.00 for the sheep and $198,000.00 for loss of revenue and diminution of land value was obtained.
The Army did not readily admit its responsibility in the incident and, indeed, Dr. Osguthorpe’s investigation resulted in a diagnosis that the death of the sheep was caused by organic phosphate poisoning. Moreover, his subsequent investigation established that the Army’s nerve gas test produced the injury. This test was conducted on a windy day and gas was released at a considerable altitude. This was due to the fact that the tanks containing the gas failed to close as the plane gained altitude after releasing part of the substance over the test grid.
As in Claim I, the question was whether a contract existed between Osgu-thorpe and the livestock company, and it boiled down to whether Osguthorpe’s activities were on behalf of the State of Utah which had hired him in the first instance, or performed on behalf of the livestock company. There is no contention as to any formal hiring of Osgu-thorpe, nor was it suggested that there was any basis for compensation, and hence the plaintiff’s theory was that it was an informal implied contract of employment, whereby he would be paid for the reasonable value of his services. Plaintiff maintained that Hatch, the foreman for the livestock company, agreed generally to compensate him for his services and that this agreement took place before the investigation started. In the alternative, he contended that although he started the investigation on behalf of the State, he continued it at Hatch’s request for the purpose of fixing the source as well as the cause of death.
It was the defendant’s position that the plaintiff came upon its land as a representative of the State of Utah and that his activities were wholly on behalf of the State; and so, even though defendant requested that Osguthorpe make investigations on the Anschutz property, the request was to him as a representative of the State of Utah and it was not intended that he be hired to perform service on behalf of Anschutz. As noted above, Osguthorpe testified that Hatch orally promised that he would be paid and thus made clear an intention on the part of Anschutz to employ him. There was ample evidence also to support the Anschutz theory that Osguthorpe acted only on behalf of Utah. Hatch’s testimony was that he merely agreed to Os-guthorpe’s coming into the area, that this conversation over the telephone in which he assented to Osguthorpe’s making an investigation was necessary because of their having had a misunderstanding before that time. Hatch denied, that he had intended to employ Os-guthorpe or that he had promised to pay. Hatch’s testimony was corroborated, somewhat at least, by Agiculture Commissioner Waldron of Utah who testified that he employed Osguthorpe because at that time Utah did not have a state veterinarian.
[1003]*1003Thirdly, there was a strong circumstance in favor of Anschutz: Osgu-thorpe testified before a Congressional committee that he was the official representative for the State of Utah, and, although this was long subsequent to his conversation with Hatch, he made no mention of any employment by An-schutz. He had an explanation for this also; that he had to use his official commission in order to be able to conduct negotiations and dealings with the government agencies involved.
Anschutz argues here as it did in Claim I that the trial court erred in failing to plainly submit its theory of defense to the jury. The trial court instructed the jury that if the defendant requested the plaintiff to render services for it and if the plaintiff, pursuant to that request rendered such services, then he was entitled to the fair value of the services so rendered, notwithstanding that he may also have been employed by the State of Utah.9
Anschutz maintains that it was open to the jury to return a verdict for the plaintiff based solely on their having requested that he come on the property regardless of whether the jury believed that he did so as an employee of Utah and regardless of Anschutz’s intention to employ him. It may be that the charge quoted above could have delineated this issue with more clarity than it did. The term “request”, for example, is somewhat ambiguous, for if Osgu-thorpe was requested to carry out his investigation solely as a Utah official, there could not have been an employment contract with Anschutz.
Had the charge been limited to the first and second paragraphs quoted above, there would be substance to the [1004]*1004contention of Anschutz. However, the next- paragraph speaks of an offer to render service and acceptance of such an offer by Anschutz, and thus it does more than hint that the jury has to find an employment contract. Moreover, the definitive portion of the court’s charge, which portion described the claims more clearly, expressed the necessity for a jury finding that there must have been a specific request by Anschutz that the plaintiff perform services on its behalf in order for the plaintiff to be compensated. In this regard the court told the jury:
Now, plaintiff’s second claim is that the defendant or the defendant’s employees or the defendant’s superintendent of Utah operations, Hatch, requested that the plaintiff perform services as a doctor of veterinary medicine, a specialist in disease of sheep, in connection with determining the cause of death of plaintiff’s sheep —the cause of the death of defendant’s sheep, and the defendant requested that the plaintiff perform these professional services in connection with determining that the United States Government was responsible for the death of the sheep; that the plaintiff did perform those services and that the plaintiff is entitled to recover against the defendant the fair and reasonable value of the services that plaintiff performed pursuant to such request.
Now, again, on the other hand, the defendant denies that it made any request of the plaintiff to perform services and denies that it made any agreement to pay Dr. Osguthorpe, the plaintiff, for his services. Instead, the defendant Anschutz Land & Livestock Company asserts that the plaintiff, Dr. Osguthorpe was in the employ and working for the State of Utah.
Unquestionably a party is entitled to an instruction setting forth his theory of the case. See Clifton v. Mangum, 366 F.2d 250, 253 (10th Cir. 1966).10 However, we cannot say that the charge in question read in its entirety deprived the defendant of its theory that Osguthorpe was used by it only in his capacity as a veterinarian for the State of Utah. While the charge could have been fashioned so that it expounded defendant’s theory in clearer relief, it does not follow that it was uncertain or inadequate under the circumstances.
Finally, the $25,000.00 fee is challenged, and while it does appear somewhat high, at least to the uninitiated, the fact remains that extensive and skillful services were furnished, and An-schutz reaped the benefit of those services to a considerable degree.
Nor can it be said that Osguthorpe was an incompetent witness as to the value of his own services. His testimony was enhanced by the fact that Anschutz offered no evidence on this point. Nor can we agree that Osguthorpe was disqualified as an expert witness because of his being a party. See Hardt v. Heller Bros. Co., 72 F.Supp. 795, 799 (E.D.Pa.1947), modified on other grounds 171 F.2d 644, 648-649 (3rd Cir. 1948).
It is the fact just mentioned, that Anschutz derived great value from the services rendered in obtaining a most favorable settlement from the Army, which is at last argued as erroneous receipt of evidence. We disagree. This evidence was germane to the issue of the reasonableness of Osguthorpe’s fee; receipt of it was not an abuse of discretion.
We have considered also the issue whether it was reversible error to tell the jury that the State of Utah [1005]*1005could not and would not pay for services rendered to private parties such as An-schutz. The instruction further told the jury that the State was prohibited from using state funds for private purposes. This evidence was somewhat less relevant than that just considered. However, we fail to see that Anschutz was prejudiced by it, whereby we would be justified in reversing the case on this basis alone.
The judgment as to Count I discussed above is reversed. The judgment as to Count II, the employment contract, is affirmed, and the cause is remanded for a new trial on Count I.