— -after stating the case: The writing, to the introduction of which before the Court objection is made, was the initiation of the negotiation which terminated in the contract of May 3, 1888, and seems to have been secured as a preliminary part of the transaction, perhaps shedding some light upon the provisions, but not to change or in any respect modify the agreement represented in the two papers; nor does it seem to have been allowed any force or weight in putting a construction upon their terms. • It was, therefore, harmless, and could have had no effect upon the mind or influenced the opinion of the trying Judge. It would be a reviewable error in the Judge, while in the exercise at the same time of his own and the functions of the jury, to admit and act upon incompetent evidence in arriving at facts, for in passing upon their admissibility ho virtually instructs himself in determining what may be considered as declared therein.
*153Yet immaterial evidence, not calculated to mislead in passing upon disputed facts, is not error. Patton v. Porter, 3 Ired, 539; Reynolds v. Magnus, 2 Ired , 26.
More especially can no complaint be made of the ruling when it is manifest that the admitted script had no influence upon the legal result arrived at,'which was based solely upon a construction of the other writings. The conclusion of the defendants’ nondiability upon the two last notes was dependent upon the effect given to the writings, which together constitute the contract, about which there was no controversy.
2. This brings up the inquiry as to the correctness of the interpretation put upon the contract in its entirety. The explanatory condition annexed to the promise in the notes, evidently refers to the lease, and repels the possible inference of a purchase and mode for paying for the apparatus, while the lease itself declares the contract to be one of hiring or bailment for a stipulated term, “ two years and two months ending July 3, 1890,” and the promise is to pay them, the plaintiffs, “for the possession and reasonable use thereof, the sum of seven hundred and thirty.two dollars,” partly in money, partly in time notes, of which those before us form part.
It is further expressly provided that, while upon full pay-men t of the sums specified, the title should pass to the defendants, yet that, “ upon any breach of the provisions of the lease, especially upon the failure of the lessee to pay the several obligations, or either of them, as they become due and payable, then this lease and any and all claim or right on the part of said lessee under the same, or to the further use and possession of said property, shall be thereby terminated,” &c. The import of this language is too plain to admit of dispute. It creates a bailment which may last for a given period, but comes to an end, in which case the parties for the future occupy the same relations, as to the title to the *154property, as before the making of the contract and further payments are dispensed with.
We think the contract was terminable by the lessees, and results from their failure to meet any one of the obligations.
The notice of defendants’ intention to pay no more was, in legal effect, equivalent to such failures; in fact and eo instanti ended the bailment and lease. The plaintiffs then became entitled to possession of the property, and the defendants to the surrender of the undue notes, and their exoneration therefrom was effected.
There is no error, and the judgment is affirmed.
Affirmed.