DEVEREUX, C.
(after stating the facts as above). The first assignment of error is whether the court erred in overruling the demurrer to the plaintiff’s evidence, and this raises the question whether there was a sale to the plaintiff by which the title to the diamonds passed. In consideration of this question, under' the well-established rule, we must assume that the evidence of the plaintiff and all reasonable deductions to be drawn therefrom are admitted to be true.
Reynolds v. Brooks,
149 Pac. -. The evidence establishes the fact on this demurrer that the plaintiff purchased these diamonds at the price of $256.90, paying thereon $150 and taking possession of the diamonds; that the vendor agreed that if on examination she discovered the diamonds were not what he represented them to be, he would make them all right, and the .question presented is, Was there such a. sale as would pass title to the plaintiff? In the
Elgee Cotton
Cases, 22 Wall. 180, on page 187, 22 L. Ed. 863, the court say:
“It must be admitted there is often great difficulty in determining whether a contract is itself a sale of personal property, so as to pass the ownership to the vendee, or whether it is a sale on condition, to take effect or be consummated only when the condition shall be performed, or whether it is a mere agreement to sell. It is doubtless true that whether the property passes or not is dependent upon the intention of the parties to the contract, and that intention must be gathered from the language of the instrument. There are, however, certain rules for the construction of such contracts, which are well settled in England, and, we think, also in this country. Mr. Justice Blackburn, in his work on Sales, states two of them, and Mr. Benjamin, in his treatise, adds a third. They are as follows:
“First. ‘When, by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.’
“Second. ‘Where anything remains to be done, to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things shall also be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted.’
“Third. ‘Where the buyer is by contract bound to do anything as a consideration, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.”
“These may be regarded as rules for ascertaining the intention -of the parties. They are in most cases held to be conclusive tests.”
Applying the rule laid down in this case, which seems to have been followed by all of the states, was the contract entered into rat the time the diamonds were purchased such a one as would pass title to the purchaser? We think it was. This case does not ■come under the first rule laid down in the
Elgee Cotton Cases, supra,
because nothing was to be done by the vendor in this case for the purpose of putting the diamonds into that state in which the purchaser was bound to accept them. The purchaser accepted them at the time with the agreement on the part of the vendor that if not satisfactory he Avould make them right. This was not a condition precedent to the vesting of the title, but a warranty only on the part of the vendor that if the diamonds were not satisfactory he would make them so. That being the case, the -title passed, as against this demurrer, at the time that the diamonds •were delivered. We do not consider the effect of the contract
above set out, because that was part of the defendant’s evidence, -and consequently was not before the court when the demurrer was passed, upon, and cannot be considered by us in reviewing the ruling of the court on this demurrer. The. question) then arises that, if the property passed under the circumstances of this case, could the plaintiff maintain replevin against the bank? We think she could. In Shinn on Replevin, sec. 81, it is decided that a bailor may bring replevin against a third person who has obtained ■possession from the bailee, and the possession is wrongful as against the bailor. This is for the reason) that where the bailee himself terminates the bailment by parting with possession, the third person, who had obtained possession otherwise than in accordance with the bailment has a wrongful possession1 as against the bailor, and the person getting possession from the bailee gets no better right than the bailee himself had, although he be a
bona fide
purchaser. In the note to this section the author says:
“Where the bailee has sold the goods to one who had notice of the special agreement between the bailee and bailor that the title was to remain in the latter until the price was paid, the bailor was permitted to recover the goods from such third person. The purchaser acquired no better title than the bailee had.
Patterson v.
Stevenson, 2 Pears. (Pa.) 205.”
This volume is not in the library, and we have had no opportunity to examine the case, but cite it from the notes as given by Mr. Shinn.
•
Branson v.
Heckler, 22 Kan. 610, was a case of replevin where one McNear, residing in Ohio, had engaged a car to ship- certain goods to Kansas. Heckler had certain buggies in Ohio which he wished taken to Kansas, and made an arrangement with McNear by which the buggies should be placed in the car chartered by McNear, Heckler paying his proportion of the freight. The bill of lading was issued to McNear for the buggies, as rvell as the other property in the- car. Hpon arriving in Kansas McNear did not have sufficient money to pay the freight, and he pledged these
buggies with Branson, who took actual possession of the buggies and advanced $148 to pay the freight on the entire car. Heckler •brought replevin against Branson for the possession of the buggies, and recovered. There was no allegation which proved that Bran-son had any notice of the true ownership of the buggies when he advanced the money. The syllabus in that case is as Mows:
“Possession, through
prima fade
evidence of title, is only
prima
facie, and subject to be overthrown by other testimony; and, to acquire title, purchaser must be made from the owner, or one authorized to sell. The possession of goods by a bailee or agent gives him no power to pledge them for a debt of his own, except by * * * actual authority received from the owner.”
In this case the court also holds that before maintaining his action to recover the.possession of the buggies it was not necessary for Heckler to tender or pay any part of the freight money which Branson had advanced.
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DEVEREUX, C.
(after stating the facts as above). The first assignment of error is whether the court erred in overruling the demurrer to the plaintiff’s evidence, and this raises the question whether there was a sale to the plaintiff by which the title to the diamonds passed. In consideration of this question, under' the well-established rule, we must assume that the evidence of the plaintiff and all reasonable deductions to be drawn therefrom are admitted to be true.
Reynolds v. Brooks,
149 Pac. -. The evidence establishes the fact on this demurrer that the plaintiff purchased these diamonds at the price of $256.90, paying thereon $150 and taking possession of the diamonds; that the vendor agreed that if on examination she discovered the diamonds were not what he represented them to be, he would make them all right, and the .question presented is, Was there such a. sale as would pass title to the plaintiff? In the
Elgee Cotton
Cases, 22 Wall. 180, on page 187, 22 L. Ed. 863, the court say:
“It must be admitted there is often great difficulty in determining whether a contract is itself a sale of personal property, so as to pass the ownership to the vendee, or whether it is a sale on condition, to take effect or be consummated only when the condition shall be performed, or whether it is a mere agreement to sell. It is doubtless true that whether the property passes or not is dependent upon the intention of the parties to the contract, and that intention must be gathered from the language of the instrument. There are, however, certain rules for the construction of such contracts, which are well settled in England, and, we think, also in this country. Mr. Justice Blackburn, in his work on Sales, states two of them, and Mr. Benjamin, in his treatise, adds a third. They are as follows:
“First. ‘When, by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.’
“Second. ‘Where anything remains to be done, to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things shall also be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted.’
“Third. ‘Where the buyer is by contract bound to do anything as a consideration, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.”
“These may be regarded as rules for ascertaining the intention -of the parties. They are in most cases held to be conclusive tests.”
Applying the rule laid down in this case, which seems to have been followed by all of the states, was the contract entered into rat the time the diamonds were purchased such a one as would pass title to the purchaser? We think it was. This case does not ■come under the first rule laid down in the
Elgee Cotton Cases, supra,
because nothing was to be done by the vendor in this case for the purpose of putting the diamonds into that state in which the purchaser was bound to accept them. The purchaser accepted them at the time with the agreement on the part of the vendor that if not satisfactory he Avould make them right. This was not a condition precedent to the vesting of the title, but a warranty only on the part of the vendor that if the diamonds were not satisfactory he would make them so. That being the case, the -title passed, as against this demurrer, at the time that the diamonds •were delivered. We do not consider the effect of the contract
above set out, because that was part of the defendant’s evidence, -and consequently was not before the court when the demurrer was passed, upon, and cannot be considered by us in reviewing the ruling of the court on this demurrer. The. question) then arises that, if the property passed under the circumstances of this case, could the plaintiff maintain replevin against the bank? We think she could. In Shinn on Replevin, sec. 81, it is decided that a bailor may bring replevin against a third person who has obtained ■possession from the bailee, and the possession is wrongful as against the bailor. This is for the reason) that where the bailee himself terminates the bailment by parting with possession, the third person, who had obtained possession otherwise than in accordance with the bailment has a wrongful possession1 as against the bailor, and the person getting possession from the bailee gets no better right than the bailee himself had, although he be a
bona fide
purchaser. In the note to this section the author says:
“Where the bailee has sold the goods to one who had notice of the special agreement between the bailee and bailor that the title was to remain in the latter until the price was paid, the bailor was permitted to recover the goods from such third person. The purchaser acquired no better title than the bailee had.
Patterson v.
Stevenson, 2 Pears. (Pa.) 205.”
This volume is not in the library, and we have had no opportunity to examine the case, but cite it from the notes as given by Mr. Shinn.
•
Branson v.
Heckler, 22 Kan. 610, was a case of replevin where one McNear, residing in Ohio, had engaged a car to ship- certain goods to Kansas. Heckler had certain buggies in Ohio which he wished taken to Kansas, and made an arrangement with McNear by which the buggies should be placed in the car chartered by McNear, Heckler paying his proportion of the freight. The bill of lading was issued to McNear for the buggies, as rvell as the other property in the- car. Hpon arriving in Kansas McNear did not have sufficient money to pay the freight, and he pledged these
buggies with Branson, who took actual possession of the buggies and advanced $148 to pay the freight on the entire car. Heckler •brought replevin against Branson for the possession of the buggies, and recovered. There was no allegation which proved that Bran-son had any notice of the true ownership of the buggies when he advanced the money. The syllabus in that case is as Mows:
“Possession, through
prima fade
evidence of title, is only
prima
facie, and subject to be overthrown by other testimony; and, to acquire title, purchaser must be made from the owner, or one authorized to sell. The possession of goods by a bailee or agent gives him no power to pledge them for a debt of his own, except by * * * actual authority received from the owner.”
In this case the court also holds that before maintaining his action to recover the.possession of the buggies it was not necessary for Heckler to tender or pay any part of the freight money which Branson had advanced.
We are therefore of the opinion that under the plaintiff’s evidence, the property passed to these diamonds, at the time they were delivered to her upon the payment of $150, and that the agreement of the vendor to make them right if they did not suit was a warranty of quality, and not a condition precedent, and did not prevent the property from vesting at that time. The demurrer to the evidence was therefore properly overruled, but it must be understood that what is above said is based entirely on the plaintiff’s evidence, and the error assigned in overruling the demurrer thereto.
The second assignment of. error is to the admission of the evidence of the plaintiff in regard to her intention in signing the contract above set out. The question and answer objected to are as follows:
“Q. Now, Mrs. Eoseberry, you may state at the .time of the giving of this note that has been offered in evidence whether or not you understood it, or if it was your intention and purpose to convey these diamonds to Mr. Minton?”
Proper objection was made to this question, which was overruled, and the witness answered:
“A. I did not; no such idea. Q. What was your idea?”
Objection was properly made to this question, and the witness answered:
“A. When he made them good I wanted the diamonds and when he made them good I would pay him.”
The contract in this case is clear and unambiguous, and contains the express provision that the title is to be retained in Minton until the price was paid. Whether this contract was germane to the controversy admits of doubt. The bank does not claim under it. The contract was never assigned to the bank, nor was there any privity of contract between the hank and the plaintiff, but this evidence was prejudicial to the defendant on the main issue. The contract had been offered by the defendant, and no cross-petition in error is filed challenging the right to introduce it. In 4 Wigmore on Evidence, see. 2471, it is said:
“When a transaction has been voluntarily embodied in a single document, no other utterance of intent or will on the same subject can be given legal effect. Hence such a declaration is excluded from consideration even in the process of interpretation, not because it would not for that purpose be useful, but because it would be improper for the other purpose.”
This is not in conflict with the case of
Humphrey v. Timken Carriage
Co., 12 Okla. 413, 75 Pac. 528. In that case there was a mutual agreement between the parties at the time that the written contract was entered into that Humphrey should not be bound by it, and that Berkey was the real purchaser of the goods. The court ruled that, where there was this mutual understanding at the time of the entering into the contract, parol evidence was competent. to-show it; but in the case at bar there was no claim that there was a mutual understanding between Minton -and the plaintiff
that tlie contract meant other than it said. Our ruling that this evidence is not competent is sustained by a line of decisions of our Supreme Court. See
Guthrie & Western R. R. Co. v.
Rhodes, 19 Okla. 21, 91 Pac. 1119, 21 L. R. A. (N. S.) 490;
Hardin v. Kirby,
25 Okla. 479, 106 Pac. 837. It may be said that as the bank did not claim under this contract and! had no ■ assignemnt of it, the admission of this testimony is harmless error, but we do not think so. In
Hales v. Kerr,
15 Am. & Eng. Ann. C. 448, it is held that where incompetent evidence is admitted, there must be a new trial, although there is enough competent evidence in the rcord to support the verdict, because no man can tell what effect the incompetent testimony had on the minds of the jury. This rule is modified by section 6005, Rev. L. 1910, to this extent: That where evidence immaterial to the issue has been'either rejected or admitted wrongfully, the judgment will not be reversed unless, from an inspection of the entire record, it appears that there has been a miscarriage of justice. Evidence may be very material to the issue, 'but incompetent under some positive rule of law. Parol evidence to vary a written instrument is an illustration of the distinction. This evidence may be very material to the issue, but it is prohibited by a substantive rule of law, and, if admitted, no one can tell what influence it may have on the! minds of the jury. On the other-hand, evidence which is immaterial, and which tends to prove no controverted issue, will not be ground for a reversal of the judgment, if improperly admitted.
In the case 'at bar we cannot say that this evidence did not • produce prejudice. The very point at issue was whether the title to these diamonds passed to the plaintiff, and some of the evidence introduced by the defendant show that they did not was this contract. To allow the plaintiff to contradict this contract, and to say that she did not mean what the contract itself says she did, is prejudicial error.
Noland v.
Melvin, 147 Pac. 307 (not yet officially reported), is not in conflict with these views. In that case the court say:
“In our judgment, the verdict returned by the jury was the only one that reasonably could have been expected. If it had been in favor of the plaintiff, the trial court probably would have set it aside. In such circumstances, we would not be justified in reversing the judgment of the court below on the ground of misdirection of the jury, or the improper admission or rejection of evidence” (citing section 6005, Rev. L. 1910).
In the case at bar the evidence admitted bore directly on the issue in the case, and we cannot say that it had no effect on the minds of the jury, or that the verdict would have been the same if this evidence had been excluded. • ' *
We, therefore, recommend that the judgment below be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.