The appellant has filed 14 specifications of error in this case. They are as follows, to wit: “Specification of errors: (1) The district court erred in holding that the burden *357of proving that the appellee was not entitled to fifty-six head ofcattle, as mentioned in the appellee’s complaint, was upon the appellant. (2) The district court erred in refusing to permit the witness J. A. Skaggs to testify as to the connection that J. N. Henry had with his business in buying and selling cattle. (3) The district court erred in not permitting J. A. Skaggs to testify as to whether or not he employed or entered into a contract or agreement with J. N. Henry to assist him in the purchase and sale of cattle. (4) The district court erred in striking out the question and answer of witness Skaggs as to how he introduced Henry to Charles Bruner, from whom the cattle were purchased —whether as a partner or as an agent. (5) The district court erred in confining appellant to the proof as to whether Skaggs sold the cattle in question to any person by appellee’s authority. (6) The district court erred in refusing to allow the witness Skaggs to testify as to whether or not he employed Henry as an agent to assist him in the purchase and sale of cattle generally, or in the purchase and sale of the cattle in question. (7) The district court erred in not permitting witness Skaggs to testify as to the connection Henry had with the transaction and purchase of the cattle in question. (S) The district court e?red in holding that, to introduce testimony, appellant had to establish an agency, and in refusing to admit such testimony as constituted an agency on the part of Henry. (9) The district court erred in holding that Henry was a stranger to the suit. (10) The district court erred in holding, as a matter of law, that the testimony of appellant failed to constitute an agency on the part of Henry. (11) The district court erred in refusing to permit appellant to introduce testimony showing that the appellee was guilty of negligence in not notifying him of Henry’s inability to sell said cattle until Henry had departed from this country. (12) The district court erred in refusing to permit the witness Bruner, to testify as to who he contracted with in making the sale of the cattle in question. (13) The district court erred in granting a peremptory *358instruction on motion of the appellee directing the jury to return a verdict for appellee, and in requiring them to assess his damages at the value of fifty-six head of cattle mentioned in his complaint. (14) The district court erred in overruling appellant’s motion for a new trial, to which ruling of the court appellant, by his counsel, then and there excepted.” It appears from an examination of the record in this case that the specifications of error numbered from 1 to 11 inclusive, relate wholly to proceedings in the case that transpired before the second amended answer was filed, upon which answer appellant insists the case was tried. The method of amending pleadings that obtained in this case is, in our judgment, without precedent and wholly unauthorized. It appears, that at the April term, 1901, of this court, an opinion was handed down in this case by Judge Thomas, then a member of this court, reversing the judgment of the lower court, but that subsequently a petition for rehearing was filed by order of Judge Gill, and upon proper showing a rehearing was ordered. It is quite evident from the statement of the facts of the case by Judge Thomas in his opinion that by some oversight or mistake the learned judge failed to correctly state the facts as disclosed by a careful examination of the record.
Under the first specification of error the appellant is unqestionably correct in the statement of the law that the appellee should be required to prove the allegations of his complaint, but was the appellant injured in any respect whatever by this ruling? This ruling of the court and exception of the appellant were made prior to the filing of appellant’s second amended answer, in the sixth paragraph of which appellant says:
“But defendant avers that, at -the time he bought said Cattle, that the said Skaggs an$ Henry had two or three different bunches of cattle at different places in the Seminole country, and that defendant bought all of said different bunches of cattle; among them being a bunch of ahout 50 head, which defendant *359was informed that said Skaggs and Henry had bought a few days prior thereto from one Charles Bruner, and defendant is now advised that the bunch of cattle which Skaggs and Henry bought from said Bruner are the cattle which plaintiff now claims.”
It thus appears that appellant admits.thg,t he purchased the cattle bought of Charles Bruner, — about 50 head,-— and witness Skaggs testified as follows: “ Q. Did you buy the cattle described in this complaint at any time during the year 1897? A. Yes, sir. Q. From whom did you purchase them? A. Charlie Bruner. Q. Who furnished the money with which these cattle were paid for? A. Mr. Singleton. Q. How many of these cattle were there? A. There were fifty-six head.” ■ '
The cheeks given to Bruner by Skaggs were introduced in evidence, and are as follows:
Exhibit A. “C. J. Benson. Shawnee, O. T., June 29, 1897. No. 50 steers. Shawnee State Bank: Pay to B. Bruner................ or order $500 (five hundred....................dollars). [Signed.] J. A. Skaggs.” Indorsed on face: “Shawnee State Bank. Paid Jun. 30, 1897, Shawnee, Ok. Ty.” Indorsed on back: “This part payment on fifty 4 & 3 year stears. [Signed.] Chas. Bruner & A. D. Bruner.”
Exhibit B. “Shawnee, O. T., July ,1897.....................No-balance on 56 stears. Shawnee State Bank: Pay to C. Bruner ........................or bearer $1,052 (ten hundred & fifty-two................ dollars). [Signed.] J. A. Skaggs.” Indorsed on face: “Shawnee State Bank. Paid Jul. 7. 1897. Shawnee, 01c. Ty.” Indorsed on back: “[Signed.] Chas. Bruner.”
Skaggs further testified as follows: “Q. Where were the cattle at the time they were purchased? A. In Mr. Bruner’s pasture. Q. Where is that pasture? A. In the Seminole Nation. Q. Were they then taken out of that pasture by you? A. Taken *360out to brand, only. Q. When did you do that? A. It was about the— I could not just give the date. I can guess at it pretty close by one of those checks there. Q. It was about the 7th of July? A. Yes, sir; something near the 7th. I think I gave him this check after I had branded the cattle’, as well as I recollect. Either just before or just after that. Q. What was then done with the cattle? A. Put back in Mr. Bruner's pasture. Q. Had you left the cattle out there all the time without looking after them? A. I had seen them, probably, once after I branded them. After I branded them I went over and bought six head more, and put them back in the pasture." Charles Bruner, witness for appellant, also testified as to the number of cattle, as follows: “Q. Were the cattle gone when you got back? A. The cattle did not that time. Mr. Skaggs came back there when he came to brand them. We cut the cattle out, and at that time— At the first time he only bought 50 head. When we cut the cattle there were five or six more of the same kind of cattle —similar cattle. ■ We made a trade as to the price, and he took five or six more.” It thus conclusively appears that there were 56 head of cattle, and the court's ruling as to the burden of the proof, admitting it to have been erroneous, could have been of no possible injury to the appellant.
As heretofore stated, specifications of error down to and including No. 11 were as to proceedings that occurred at the trial prior to the filing of the' second amended answer. After the filing of the second amended answer it does not appear that counsel for appellee made any objection to the introduction of testimony, -and counsel for appellant were allowed to proceed without objection. The errors assigned in not permitting witness Skaggs to testify as to what agreement he had with Henry are not well taken, as the record heretofore copied in the statement of fact fully explains his agreement with Henry, and that was that Henry, should furnish a man to help him with the cattle to *361Kansas. The error alleged in striking out the question and answer as to how the witness Skaggs introduced Henry to Bruner —whether as a partner or agent — is not well taken, for the reason that said question and answer were not stricken out by the court, and exhibit a careless and negligent inspection of the record by appellant’s counsel. The court expressly says, “The objection would be sustained in each ease if the witness had not already answered.” Appellant insists that appellee and witness Skaggs were partners, but no objection is taken to appellee’s capacity to sue in this action, and we are at a loss to discover how the same becomes material . Whether Skaggs and the appellee were partners in the business of buying and selling cattle, or Skaggs was an agent for appellee, how does it assist appellant in this action, unless he can show that he purchased the cattle from appellee or Skaggs, or from some one authoriezd by one or both of them to sell this particular lot of cattle? There is absolutely no proof in this record that Henry had any interest in this lot of cattle, or had any authority from either appellee or Skaggs to sell the same. The cattle were never in his possession until he stole them from the Bruner pasture, and the circumstance of his being present when Skaggs bought the cattle from Bruner, and Bruner being absent, enabled Henry to get them and sell them to appellant. As soon as Skaggs learned of it he endeavored to find the cattle and when he learned appellant had bought them he immediately notified him that the cattle had been stolen. The only pretense of a defense is that appellant or Skaggs had by some act clothed Henry with the apparent authority to sell these cattle, and the appellant, acting in good faith upon such apparent authority, secured a good title, and that the appellee is estopped from recovering the cattle by reason of his act or the act of Skaggs in thus holding out Henry or clothing him with apparent authority to sell. Having examined the record with much care, all connection that Henry had in any way with this lot of cattle is shown by the evidence of Skaggs *362witness for appellee, and Bruner, witness for appellant. The same has been fairly collected by counsel for appellee, and is as follows: “That he did not employ or enter into a contract with J. N. Henry to -assist him in the purchase or sale of cattle. That Henry was to furnish him a man to help him to Kansas with these cattle, for which Skaggs was to divide his part of the profits with him. That Henry was with him when he went to buy these cattle at Bruner’s. That he did not introduce Henry to Bruner as his partner. That he (Skaggs) did all the buying, and the only use he had for Henry was to help him take care of the cattle. That he didn’t know anything about Henry’s paying Bruner for the pasturage of the cattle. That he didn’t know to whom the cattle were sold till after he saw Gentry at’ Checotah. That after he found this bunch of cattle he got a warrant for Henry, for fear he would steal other cattle. That he was afraid of Henry, and afraid to try to force a settlement for the missing cattle with him. That Henry commenced helping him with these cattle about May or June. That Henry and himself were not together much. Henry furnished a man who helped him with the cattle. That Singleton knew of the arrangement with Henry just after the first bunch of cattle was brought from Bruner. That Henry told Singleton he claimed no interest in the cattle except when the cattle were sold; then he claimed one-fourth of the profit. That he understood Henry sold some cattle of his own to Gentry’s agent at the same time he sold these. That as soon as he heard Gentry, of Checotah, was the man who got the cattle, he got on the train, and went over there and told him the true status of affairs. That Henry was -not present when he (Skaggs) ■took the cattle out of the Bruner pasture and branded them and put them back in the pasture. That the only service Henry was to render was to furnish a man to help with the cattle over to Kansas, where he expected to carry them. That he (Skaggs) was absent when he (Henry) sold these cattle. -That as soon as he found out they were gone, he wired Singleton, who came down, *363but had to go back on account of sickness before he found out anything; then heard first the cattle went to Okmulgee, and wired Singleton to go there; and then went to Checotah, and wired Singleton to meet him there. Chas. Bruner testified: * Don’t remember the day they (Skaggs and Henry) came there, but think it was the latter part of June. They came over one morning', driving in a single-seated buggy. I was just going out to pasture, to ride fence. Mr. Skaggs said he heard I had cattle for sale. I said, “Yes.” He asked where. I said, “In the pasture.” We started up in the pasture. When we got to the southwest corner of the pasture, Mr. Skaggs said, “Let me take your horse, and you get in the buggy.” I said, “All right;” and he rode my pony, and I went in the buggy with Mr. Henry over there to the east side of the pasture, wherejdie water tank is. After we got there, we drove in, watered the team, and drove up the hill. We got out of the buggy, and Mr. Skaggs got off the pony. We stood talking and making the trade. I priced the cattle, and he afterwards agreed to buy them, and said that he would pay me $500 on the cattle, and let the cattle stay in the pasture until I saw that the cheek was all right. I told him that I was going away; that I would send the check over by my wife, and that she would take care of it; that I had to go away. While we were talking after we had made the trade, we were standing in a group. He introduced Mr. Henry, and said, “This is Mr. Henry, the man that is helping me with the cattle.” After he had talked awhile he said he wanted the cattle to stay in the pasture. He said he would pay me by the week, I believe. Anyway, it amounted to $6. Can’t recollect how that was, but the cattle were to remain in the pasture. I told them that I would not be there; that I had a man riding the pasture, but would not be responsible unless I was there myself; and he said that he or Mr. Henry would be around there to look after the cattle.”
Mr. Mechem, in his work on Sales (section 154), states the legal principles, in our judgment, applicable to this case, as fol*364lows: “It is a fundamental doctrine of the common law, from which all discussion of the question must proceed, that, in general no one can transfer a better title to a chattel than he himself possesses. 'Nemo dat quod non habet’ is usually the inflexible maxim. That some or all of the parties acted in good faith or parted with value is usually immaterial. However innocent the motives, or however vaulable the consideration, if the party who assumed to convey had no right or title to trasfer, no title can pass to the other. * * *
“Sec. 166. Whether the possessor is the true owner, or a bailee, or the finder, or a thief, the evidence of possession may be precisely the same, and to make possession the test of ownership is obviously impossible. It may be prima facie evidence but it is nothing more. Whoever, therefore, buys from one in possession, must see to it, at his peril, that the seller has some other title than that which possession alone confers upon him. For if the seller were but a bailee of the true owner, his servant or lessee, or if the seller were a mere finder or a thief, the purchaser, however innocent he may have been, or however much he may have paid for the property, can acquire no claim as against the true owner of the goods. Simply intrusting the possession of a chattel to another, as depository, pledgee, or other bailee, or even under a conditional executory contract of sale, is clearly insufficient to preclude the real owner from reclaiming his property in case of an authorized disposition of it by the person so intrusted. The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title.
“Sec, 167. But while possession alone is thus not sufficient evidence of ownership, it is possible that the true owner may have clothed the possessor with such additional evidence of title as to cause the possessor to appear to be the owner. “It *365must be conceded/ it is said in a leading ease, ‘that, as a general rule applicable to property other than negotiable securities, the vendor or pledgor can convey no greater right or title than he has. But this is a truism, predicable of a simple transfer from one party to another, where no other element intervenes. It does not interfere with the well-pstablished principle that where the true owner holds out another or allows him to appear as the owner of, or as having full power of disposition over, the property and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directiy, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vestéd in the party making the conveyance.’
“Sec. 158. In order, however, that this rule shall operate, it is essential that the acts relied upon as indicating ownership by the possessor shall be acts for which the true owner is responsible; for it is clear that no acts of the possessor alone can suffice to cut off the rights of the true owner. The acts relied upon must, however, be such as to reasonably warrant the conclusion that the possessor was authorised to sell. Thus, for example, while it may be true that sending goods to an auction room, or to any other place to which goods are sent only to be sold, sufficiently indicates that the owner desires them sold, still the mere fact, that one puts,his goods, for some other purpose than sale, into the posssesion of one who may happen to be a dealer in similar goods, does not of itself justify the conclusion that the dealer is to sell these goods. Independently of the provisions of the statute in regard to the dealings with agents and factors it is very clear, it is said, that the bare possession of goods by one though he may happen to be a dealer in that class of goods *366does not clothe him with power to dispose of the goods as though he were the owner, or as having authority as agent to sell or pledge the goods to the preclusion of the right of the real owner. If he sells as owner, there must be some other indicia of property than mere possession. There must be some act or conduct on the part of the real owner whereby the party selling is clothed with the apparent ownership or authority to sell, and which the real owner will not be heard to den3? or question to the prejudice of an innocent third party dealing on the faith of such appearances. If it were otherwise, people would not be secure in sending their watches or articles of jewelry to a jeweler’s establishment to be repaired, or cloth to a clothing establishment to be made into garments. ‘ It is not every partihg with the possession of chattels or the documentary evidence of title,’ it is said in another case, ‘that will enable the possessor to make a good title to one who may purchase from him. So far as such a parting with the possession is necessary in the business of life, or authorized by the custom of trade, the owners of the goods will not be affected by a sale by the one having the custody and manual possession. But the owner must go farther, and do some act of a nature to mislead third persons as to the true position of the title.’
“Sec. 159. Again, the purchaser must actually have parted with value in reasonable reliance upon the apparent authority so that he will be prejudiced if the transaction.is not upheld. ‘Two things must concur,’ it is said, ‘to create an estoppel by which an owner may be deprived of his property by the act of a third person, without his assent, under the rule now considered: (1) The owner must clothe the person assuming to dispose of the property with the apparent title to or authority to dispose of it; and (2) the person alleging the estoppel must have acted and parted with the value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to *367which he trusted are not real. In this respect it does not differ from other estoppels in pais.’ ”
See Jetton vs Tobey, 62 Ark. 88, 34 S. W. 532, as follows: “A general rule of the law of personal property is that no man can sell that which he has not, and is not authorized by the owner to transfer, or confer a better title than that he has. An honest purchaser under a 'defective title cannot hold against a true proprietor. ‘No one can transfer to another a better title than he has himself, is a maxim/ says Chancellor Kent, ‘alike of the common and civil law, and a sale, ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor.'” Page 90, 62 Ark., and p. 533, 34 S. W.: “The mere possession of personal property, without other evidence of title, or authority from the owner to sell, will not enable the possessor to confer a better title than he actually has. As said by Chief Justice Brickell in Leigh vs Railroad Co., 58 Ala. 178: ‘ Possession is prima facie evidence of the ownership of all species of personal property. It is but prima facie, and whoever deals alone on the faith of it must accept it as such, and in subordination to the paramount title, which would prevail over it if the possession was not changed by the transaction into which he enters. If this be not true, a felon acquiring possession by theft could, by a sale to an innocent purchaser, devest the true owner of his property. A naked bailee, intrusted with possession, could dispose of goods to the prejudice of his principal. A case does not fall within the exception unless the owner confers on the vendor other evidence of ownership, or of authority to dispose of the goods, than mere possession/” See, also, Barnard vs Campbell, 55 N. Y. 456, 14 Am. Rep. 289, as follows: “Two things must concur to create an estoppel by which an owner is prevented from asserting title to and is deprived of his property by the act of a third person without his assent: (1) The owner must have clothed the person assuming to dispose of the property *368with the apparent title to or authority to dispose of it; (2) the person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority so that he will be the loser if the appearances to which he trusted are not real.” McMahon vs Sloan (Pa.) 51 Am. Dec. 601; Saltus vs Everett (N. Y. App.) 32 Am. Dec. 541. And many cases could be cited which sustain the text of Mr. Mechem, and, in our judgment, decide the doctrine stated to be the settled law.
Had the cause been submitted to the jury, and they had returned a verdict for appellant, it would have been the duty of the court, in our judgment, to have set the same aside, and therefore the court acted properly in directing a verdict for appellee. Hence the judgment of the court below is affirmed.