Respondent, plaintiff below, brought the action out of which this appeal grows in claim and delivery to recover possession, or the value thereof, of a certain hay-cutting machine and attachments, together with damages for the unlawful taking and detention of the same by appellant. The complaint alleged ownership of the machine by respondent which was denied by appellant in his answer, the taking of the machine by appellant being admitted. The cause was tried to the court and a jury and a verdict was returned for respondent that he was entitled to the possession of the property claimed and that the same should be returned to him (its value being fixed at $800), and that respondent was also entitled to the sum of $200 as damages for the unlawful detention of *Page 514 the property by appellant. An appeal has been taken from the judgment entered on the verdict and from an order denying a motion for new trial.
The main issue in the case is as to the ownership of the property, and the sufficiency of the evidence to sustain the verdict of the jury in finding that respondent was entitled to the possession of the same is questioned by appellant. A holding as to the sufficiency of the evidence therefore is decisive.
Appellant owned the machine originally, and about November 1, 1922, began negotiations with respondent for the sale of the same to the latter. Conversations between the parties were had on three different occasions before the property was turned over to respondent. No understanding was reached at the first meeting. About two days after the first conversation appellant went to the home of respondent and the negotiations were continued, appellant desiring a cash payment of $250 and respondent stating that he could not make a cash payment but that he would pay the $250 out of net proceeds received from cutting hay at the rate of 400¢ a ton until the first $250 was paid, after that appellant to receive a lesser amount of the net proceeds from the use of the machine by respondent until the full amount of the purchase price, $900, was paid. Some few days after the second conversation appellant again went to the home of respondent and told the latter that he, appellant, was going to Kansas City and would like the respondent to sign a note for $650 (being the balance due on the purchase price after payment of the first $250), and that upon his, appellant's, return they would sign a written contract embodying the terms of the agreement for the sale of the property. It was the understanding of the parties that the note was only temporary and was simply to hold until the written agreement could be drawn up.
Respondent read the note carefully and signed and delivered it to appellant. It called for the payment of $650 twelve months after date, with interest at the rate of eight per cent per annum payable at maturity, but after maturity *Page 515 the rate of interest to be twelve per cent. The note was a printed form and contained a provision as to deposit with the payee (appellant) of the property which was the subject of the negotiations, and while perhaps not material, such provision in the note might have some bearing as evidencing the intention of appellant not to part with title to the property until the full consideration was paid.
Shortly after the execution of the note above mentioned respondent took possession of the machine and began using it in the cutting of hay for himself and others. Both parties thereafter had written contracts prepared, the one proposed by appellant containing a clause reserving title to the property in himself, while respondent's draft did not contain such a provision. Neither of these instruments was signed, although there were several interviews between appellant and respondent in an effort to reach a final agreement. After the respondent had used the machine about a month and paid no part of the receipts derived from its use to appellant (it being respondent's contention that he was holding up moneys due to appellant until a contract was signed), the latter repossessed the property.
Both of the parties being in accord that the agreement which was to be binding upon them was a written contract to contain the terms of the purchase and sale, and that the arrangements up to the time of signing such a contract were merely temporary and abided the execution of a written agreement, the question is whether title to the property in dispute ever passed from appellant to respondent in the absence of the signing of a written contract. The statement of the proposition would seem to contain its answer.
Where contracting parties agree to reduce their contract to writing, the question whether their negotiations constitute a present contract usually depends upon their intention, that is, whether they intend the writing to be a condition precedent to the taking effect of the contract. If the written draft is viewed by the parties merely as a convenient memorial or record of their previous contract, its absence does not affect the binding force of the contract; *Page 516 if, however, it is viewed as the consummation of the negotiation, there is no contract until the written draft is finally signed. Where the writing is regarded as a prerequisite to the closing of the contract, the contract does not become binding if there has been a failure to reduce it to writing. (6 Rawle C. L. 618, sec. 39.)
In the application of the rule above stated, it is to be remembered that the intention of the parties is controlling, and not the intention of but one of them. So that, if appellant, in the understanding had between himself and respondent that the contract was to be reduced to writing, had in mind that the written (binding) agreement was to contain a provision that title to the property was not to pass until the purchase price was fully paid, then there was no meeting of the minds, and hence there could be no completed contract until the parties signed the writing containing terms agreeable to both of them. There is no doubt that it was the intention of appellant to retain title to the property pending payment therefor in full.
Under the most favorable view of the evidence adduced by respondent it cannot be said that he established by a preponderance of the proof that the negotiations for the purchase of the property constituted a completed contract in the absence of the signing of a written agreement, which being true, title was never transferred to respondent and he could not maintain an action for its recovery. The judgment should be reversed. *Page 517