Gordy & White contracted with defendant to furnish all materials and labor for the erection of a schoolhouse. Gordy & White bought from plaintiffs the inside finish for the building, and it was shipped to Tipton and delivered on the schoolhouse grounds. Plaintiffs, however, claim that the title of the finishing material was to remain in them until paid for. During the progress of the work a misunderstanding arose between Gordy & White and the school board, and the work was abandoned. At that time, the materials furnished by plaintiffs were unused and were stored at the schoolhouse. Plaintiffs demanded the possession of the materials, but the school board refused to give them up and proceeded to and did use the same in finishing the building. Defendant claimed that before having notice of plaintiffs’ rights, it had paid Gordy & White for the material. Plaintiffs sued for the conversion of the finishing materials, and on a trial by jury recovered judgment, from which defendant appealed.
I. A reversal is asked on the ground of erroneous instructions given at plaintiffs’ request. The *88objections, too, are well taken. Here is the second instruction:
“If the jury believe from the evidence that the material sued for was the property of the plaintiffs at the time the defendants took and converted the same to their own use and that the same has not been paid for, your verdict will be for plaintiffs, if they further find that the same was converted to defendant’s use.” This instruction is indefinite as to a material feature of the case. The main fact in controversy is, whether or not the school district bought and paid for the material before plaintiffs made known their claim. The jury might have thought that it was enough, under this instruction, if Grordy & White had not paid the plaintiffs, or if the school district had not paid plaintiffs.
II. Instruction number 6 reads as follows:
“The court instructs the jury that if they find and believe from the evidence, that at the time of the alleged payment on the alleged estimate made by the superintendent of the school building Grordy & White did not know of and consent to receive payment of the McClure bill, and did not know that the same was included in any estimate, then there was no payment in fact of said bill.”
In connection with this, it is proper to say that the school district paid Grordy & White in installments, on estimates made from time to time, by the architect and superintendent, as was provided for in a contract between the parties. Defendants introduced evidence tending to prove that these materials were included in the items of one df these estimates, and that Grordy & White received pay thereon. Now, that Grordy & White may have forgotten or did not understand that these materials were included in the estimate would not deprive defendant of the rights it had as a bona fide *89purchaser. It is enough that the superintendent (who was a middleman, or agent) included these materials in the account or estimate on which defendant parted with its money.
III. Plaintiff’s seventh instruction was as follows:
“The court instructs the jury that it is contended by the defendant school district as a defense, that it paid Grordy & White for the lumber sued for by plaintiffs in this cause, and that said payment was made by a certain warrant, dated October 17,1890, for $1,495.50; the jury are further instructed that said warrant purports on its face to be issued for “work” and not for the payment of material; that it is an illegal act for any school board to issue a warrant for the payment of school money that does not specify on its face the species of indebtedness it is drawn to pay, and it is an illegal act for the treasurer of any school board to pay any such warrant, unless it does so specify, and that the law requires such warrants to truthfully state what they are drawn for, and the defendant school district is conclusively presumed to know the law. That it is a presumption of fact, the warrant in question was drawn for “work” as it states, and while such presumption may be rebutted, yet the burden of proof is on the defendant district to destroy said presumption by a clear preponderance of the evidence that the warrant was drawn to pay for the material in question.”
With reference to this instruction it is sufficient to say that it is clearly objectionable because an unfair comment on the evidence, and it is argumentative.
The issues were not fairly placed before the jury, and the judgment will be reversed and cause remanded.
All concur.