ALBERT K. LEON, B. FRANK MANIER, JR., AND CROMWELL GIBBONS, PLAINTIFFS IN ERROR,

v.

ALICE M. KERRISON, DEFENDANT IN ERROR

Hooker, J.

(after stating the facts). — There was no error in overruling the demurrer to the first count of the declaration as it follows the form for a count for conversion laid down in paragraph 25, section 1058, Revised Statutes.

As to the second count it is evidently based on the contract under seal, made by the defendants with J. Davenport Kerrison. It does not appear from the contract or from the allegations of the count, that the plaintiff was a party to the contract or that it was made for her benefit, or on her behalf. This count, therefore, shows no right of action of the plaintiff against the defendants upon this contract. Dicey on Parties to Actions, 12; 15 Ency. PI. & Pr., 504 to 517, inclusive. As to whether the plaintiff can, under any circumstances, sue on this written contract under seal, and contradict the statement therein as to the part ownership of J. Davenport Kerrison, we do not feel called upon to decide.

There are several assignments of error based on rulings of the court upon the admission or rejection of evidence and upon charges given and refused.

The second, third and fourth assignments are based on the admission of the parol testimony of J. D. Kerrison proving ownership of the boat in the plaintiff. The contention of the plaintiffs in error is that this parol evidence was not the best evidence, and that ownership can only he shown by a bill of sale. We do not think the contention tenable. 22 Am. & Eng. Ency. Law (1st ed.) 735 et seq.; 25 Am. & Eng. Ency. Law (2nd ed.) 872 et seq.

The fifth assignment of error is based on the admission in evidence over the objections of defendants' of a letter of the Merrill-Stevens Engineering Company to Prof. J. D. Kerrison, dated July 21st, 1899, and a note made therein by J. D. Kerrison and of two letters of Cromwell Gibbons to Judge H. B. Philips, attorney for plaintiff, one dated September 20th, 1899, the other September 27th, 1899. The letter from Merrill-Stevens Engineering Company contained a demand for the payment of the money for repairs on the Artesia. The note therein made by J. D. Kerrison was simply a statement of his view of the liability of the defendants for the repairs. The letters of Gibbons were replies to letters of Judge H. B. Philips which are not in the record, and the former dealt chiefly with an agreement made subsequently to the date of the contract sued on for the purchase of the Artesia. They contain nothing from which a liability in this suit may lawfully be inferred. The letter of Merrill-Stevens Engineering Company with the note of Kerrison therein, was clearly irrelevant and incompetent for any purpose, nor can we perceive the relevancy of the letters of Gibbons to the issues in the case. The admission in evidence of these letters was erroneous.

The sixth assignment of error is based on the refusal of the court to allow the defendants to introduce in evidence a certified copy of the libel, attachment, answer of Alice M. Kerrison, final decree, order for vend, exponas, and final decree of confirmation of sale of the boat Artesia, in the District Court of the United States, Southern District of Florida, at the suit of MerrilhStevens Engineering Company against the boat Artesia, for repairs made on the boat immediately after the contract of May 25th was executed.

As the sixth plea, on which issue was joined, alleged that the repairs in the boat were made at the instance and request of J. Davenport Kerrison, after the defendants had refused to take the boat under the contract of 25th May, because of misrepresentations as to her condition made to defendants by Kerrison when they signed the contract, and had turned her over to Kerrison, who had accepted her; and that the boat had been libeled by the Merrill-Stevens Engineering Company, to recover the money due for said repairs, and sold by order of the United States Court in said libel proceedings, this record was material evidence, taken in connection with other testimony tending to support this plea. The refusal to admit this record in evidence was, threfore, erroneous.

For the errors above indicated the judgment of the Circuit Court is reversed, at the cost of defendant in error. All concur, except Taylor, C. J., absent on, account of sickness.