
    Levine v. Mitchell & Scott Co.
    (Decided June 21, 1911.)
    Appeal from Jefferson Circuit Court
    (Common Pleas, Second Division.)
    1. Contracts — Stranger—Parol.—In an action to recover articles of personal property, or their value which it is alleged were consigned to an agent on written memorandum of sale, and that he, in violation of his authority, either pawned or sold to defendant, ■the defendant not being a party to the writing, may show by parol evidence that the contract of the parties is different from what it purports to be on the face of the writing.
    2. Limitation, — Action for Specific Recovery of Personal Property.— An action for the specific recovery of personal property 'is not barred until the expiration of five years after the cause of action accrues.
    EDWARDS, OGDEN & PEAK for appellant.
    JAMES R. DUFEIN, PAUL BLACKWOOD for appellee,
   Opinion of the Court by

William Rogers Clay, Commissioner

— Reversing.

Appellee James W. Clark, trading and doing business under the firm name of Mitchell & Scott Company, brought this action against appellant Nathan Levine to recover possession of certain diamonds, or, in case the specific articles were not to be had, their value. The trial of the case resulted in a verdict for appellee for the possession of the diamonds and fixed the value thereof at $550.00. Prom the judgment based thereon, this appeal is prosecuted.

It appears from the evidence that appellee had an agent or salesman in the city of Louisville to whom he consigned the rings in question, which are described and valued as follows:

One diamond ring No. 3243, diamond weights 1% ct., value, $275.00.
One diamond and opal cluster ring No. 9850, value, $48.00.
One diamond ring No. 6207, weighs 1% L 1-32, value, $320.00.
One diamond ring No. 6195, weighs 1% and 1-32 ct., value, $220.00.

TJpon receiving each one of these rings the agent signed the following agreement:

“This certifies that I have this day received of Mitchell & Scott Co. the following goods on memorandum and in good order for inspection and to be used as samples. They are to remain the property of Marquardt & Scott Co., and are to be returned to them upon demand and in as good order as when received. Sales will be made for cash only. Return this when you report.
“One diamond ring No. 6195. l1/j-l-32 ct., $220.00 net.
“Received from Mitchell & Scott Co. the above merchandise under conditions stated in good order.”

The agent claims that he pawned the diamonds in question to appellant for the sum of $450.00. Appellant claims that the diamonds were sold to him. Appellee’s manager admits that he had an oral agreement with the agent. The agent further claims that his arrangement with appellee was oral. The trial court excluded from the consideration of the jury all evidence of what this oral agreement was, on the ground that the written memorandum which the agent signed was the only authority under which he received the rings in question, and that in the absence of a showing that the oral agree-meat, claimed by appellant to have been made by tbe agent with appellee, was made subsequent 'to the memorandum of sale given in each case, tbe terms of' tbe agreement under which tbe diamond rings were received could not be varied by parol evidence. After excluding this evidence tbe court held that tbe agent bad no authority, either to pledge tbe diamonds for bis own debt, or to sell them for a less sum than that fixed in tbe memorandum of sale. He. therefore, directed tbe jury to award appellee possession of tbe property sued for, or, in case it could not be bad, to return a verdict in bis favor for tbe reasonable value thereof.

Appellant’s chief complaint is of tbe action of tbe court in excluding all evidence of tbe oral agreement between appellee and bis agent. It has long been tbe law in this State that tbe rule forbidding evidence contrary to tbe terms of a written instrument, applies only to the parties to tbe instrument. Strangers to tbe instrument are not concluded by its terms, or estopped to show by parol evidence that tbe contract of tbe parties is different from what it purports to be on tbe face of the writing. (Strader v. Lambeth, 7 B. Mon., 589; Providence Savings Life Assurance Society v. Johnson, 24 Ky. Law Rep., 1902; Marks & Stix v. Hardy’s Adm’r, 117 Ky., 671.) It follows, then, that appellant, who was not a party to the written agreement between appellee and bis agent, bad a right to show by parol evidence that tbe terms and conditions1 upon which tbe agent received tbe diamonds in question differed from those set forth in tbe memorandum of sale, and that tbe court -erred in excluding such testimony. With this testimony admitted, a different state of case may fie presented. Of course, if Levine took tbe diamonds in pledge, appellee is entitled to recover.

As appellant obtained possession of tbe property within less than five years from tbe time suit was brought bis plea of limitation is not available. (Section 2515, Ky. Statutes.)

Judgment reversed and cause remanded for proceedings consistent with this opinion.  