This is an action of replevin wherein plaintiff claims to be the owner and entitled to the possession of certain ‘ ‘ minute books ’ ’ and plats alleged to be a part of a set of . abstract books of the title to lands in Ray county. The trial was without a jury and resulted in a finding and judgment for defendant.
*506The following is, in all material respects, a correct statement of the case: In September, 1881, T. N. Lavelock leased from plaintiff, by written lease, “all of the abstract books which were prepared by George N. McGee, deceased, and owned by him at the time of his death and now owned by” plaintiff. Defendant, “in consideration of the leasing of said abstract books, agrees with the said parties of the first part to carefully post said books, by properly transferring and entering in said books an abstract of each conveyance affecting the title of real estate that has been or may hereafter be filed in the recorder’s office of Ray county, Missouri, before the first day of May, 1882, and to keep the same so posted to the date of the expiration of the lease, and to do the work in a business-like manner. And the said party of the first part is to receive as full compensation for his services in posting said books, as aforesaid, to May 1, 1882, all the proceeds arising from the same to said date, he paying for abstract blanks and advertising during said time. And from May 1, 1882, to the expiration of the lease, all advertisements, abstract blanks and such other expense as may be necessary, are to be paid out of the proceeds arising from the using of said books, and the remainder of the proceeds are to be divided equally ” between the parties. “And the amount of money received by the said party of the second part shall fully compensate him for his services in posting said books as aforesaid.” The amount of compensation to Lavelock was afterwards increased from fifty to seventy-five per cent. The books in controversy, called minute books, were not a part of the books turned over to Lavelock by plaintiff under the lease. They came into existence since, and the question is, did they come into existence in such a way as to become a part of the abstract and thereby the property of plaintiff.
They were made up as the result of a mode which defendant adopted in posting the books. The abstracts *507are made by taking abstracts of conveyances off of the deed records at the recorder’s office and entering them, in a convenient manner for reference, on the abstract books. It seems, in taking off conveyances from the county records, instead of taking the abstract books to the recorder’s office and transcribing therein in the first instance, defendant, on account of the size and inconvenient handling of such abstract books, would transcribe from the county deed records onto these small minute books, which he would take to his office and re-transcribe onto the abstract proper. This was merely his mode or method of doing the work on the abstract books, which was required of. him by the contract. I am not able to see how, under the terms of the contract, it could have the effect of making such mem-oranda the property of the plaintiff. Any other mode which defendant might have seen fit to have adopted, which resulted in properly posting or keeping up the abstract, would have answered the same purpose. Suppose defendant had, at different times, transcribed his work at the recorder’s office on separate sheets, of loose paper, and, after each entry on the abstract books at his own office, had destroyed these sheets of paper, would he have injured plaintiff, or would he have destroyed her property ?
The contract does not set out or refer to how the books shall be posted, further than Tto say that it shall be done in a' “business-like manner.” It does not provide that minute books shall be kept or preserved, or were to become a part of the abstract. If defendant has kept the abstract books posted in “a business-like manner” and has turned them back to plaintiff, he has certainly complied with the terms of his contract.
Conceding a right to any evidence outside-the written contract, which seems to be complete within itself, as to what would properly be considered a part *508of the abstract, that evidence wtí ch seemed to partake much of the mere opinion of the witnesses differed, and, as the court has passed upon the facts, we cannot pass upon the propriety of such finding, even did we think the oral testimony applicable to the case as controlled by the agreement of the parties.
We have considered the argument advanced by counsel for appellant, which, though plausible and well put, does not overcome the points which occur to us as sustaining the 'action of the circuit court.
Judgment affirmed.
All concur.