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to so mark them. There is no claim that any change was otherwise made in the marks which were upon the lumber when the correspondence began. Upon the trial the plaintiff waived a return of the lumber. The court directed the jury that the title was in the plaintiff, and to assess its damages at the value of the lumber. The jury returned a verdict for upwards of $31,000. The case is brought here by writ of error.

All of the counsel are agreed that the principal question in the case is, Did the title to the lumber pass to the plaintiff when it accepted the offer contained in the letter of July 17, 1899? The counsel for the plaintiff insist that, under the repeated rulings of this court, the title did pass, while the counsel for defendants urge just as strenuously that, under the rulings of this court, the title did not pass. The question involved has been before this court a great many times. The trouble is not so much with the rule of law as it is in the application of it to a given case. No two cases are alike, and what has been said by the court in a given case must be taken in connection with the facts of that case. If this is done, it will go far to reconcile any apparent inconsistencies in the decisions. Plaintiff relies upon Whitcomb v. Whitney, 24 Mich. 490; Lingham v. Eggleston, 27 Mich. 329; Jenkinson v. Monroe, 61 Mich. 461 (28 N. W. 663); Wagar v. Railroad Co., 79 Mich. 651 (44 N. W. 1113); People v. Sheehan, 118 Mich. 539 (77 N. W. 88); and other cases. The defendants rely upon Lingham v. Eggleston, 27 Mich. 324; Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Byles v. Colier, 54 Mich. 1 (19 N. W. 565); Wagar v. Farrin, 71 Mich. 371 (38 N. W. 865); Blodgett v. Hovey, 91 Mich. 572 (52 N. W. 149); Slade v. Lee, 94 Mich. 128 (53 N. W. 929).

Lingham v. Eggleston, supra, has, ever since the opinion was written by Justice COOLEY, been regarded as a leading case. In that case, among other things, it is said:

"In Blackb. Sales, 123, the rule on this subject is very clearly and correctly stated as follows: The question, the

author says, is 'a question depending upon the construction of the agreement; for the law professes to carry into effect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement, and not before. In this as in other cases, the parties are apt to express their intention obscurely; very often because the circumstances rendering the point of importance were not present to their minds, so that they really had no intention to express. The consequence is that, without absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of construction, which, in their nature, are more or less technical. Some of them seem very well fitted to aid the court in discovering the intention of the parties. The substantial sense of others may be questioned. The parties do not contemplate a bargain and sale till the specific goods on which that contract is to attach are agreed upon. But, when the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfillment of any conditions; and when, by the agreement, the seller is to do anything to the goods for the purpose of putting them into a deliverable state, or when anything is to be done to them to ascertain the price, it is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But, as these are only rules for construing the agreement, they must yield to anything in the agreement that clearly shows a contrary intention.'

* * *

"The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completely delivered to the purchaser, it is usually very strong, if not conclusive, evidence of intent that the property shall vest in him, and be at his risk, notwithstanding weighing, measuring, inspection, or some other act is to be done afterwards. A striking case in illustration is that of Young v. Matthews, L. R. 2 C. P. 127, where a large quantity of bricks was purchased in kilns. Only a part of them were burned, and none of them were counted out from the rest; but they were paid for, and such delivery as, in the nature of the case, was practicable, was made. The court held that the question was one of intention merely, and that it was evident the

128 MICH.-20.

parties intended the title to pass. To the same effect are Woods v. Russell, 5 Barn. & Ald. 942; Riddle v. Varnum, 20 Pick. 280; Bates v. Conkling, 10 Wend. 389; Olyphant v. Baker, 5 Denio, 379; Bogy v. Rhodes, 4 G. Greene, 133; Crofoot v. Bennett, 2 N. Y. 258; Cunningham v. Ashbrook, 20 Mo. 553. So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to be paid, are still to be determined by the vendee. Turley v. Bates, 2 Hurl. & C. 200; Kohl v. Lindley, 39 Ill. 195 (89 Am. Dec. 294). And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for instance, to load the goods upon a vessel for transportation, the property may pass by the contract of sale notwithstanding. Whitcomb v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520. But the authorities are too numerous and too uniform to justify citation which hold that, where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted."

In Byles v. Colier, supra, the same learned judge who wrote Lingham v. Eggleston said:

"In Lingham v. Eggleston, 27 Mich. 324, it was decided that the question whether a sale is completed or only executory is usually one to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that, where the goods sold are designated so that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in deliverable condition, or that the quantity or quality, when the price depends upon either or both, should be determined,-these being circumstances indicating intent, but not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of

ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they appear to be in a state in which they may be and ought to be accepted. This case has been referred to with approval in the subsequent cases of Hatch v. Fowler, 28 Mich. 205; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Wilkinson v. Holiday, 33 Mich. 386; Grant v. Bank, 35 Mich. 515; Scotten v. Sutter, 37 Mich. 526; Carpenter v. Graham, 42 Mich. 191 (3 N. W. 974); Brewer v. Salt Ass'n, 47 Mich. 526 (11 N. W. 370). The cases elsewhere to the same effect are numerous, and many of them are collected in Mr. Bennett's note to section 319 of the third edition of Benjamin on Sales. And see Kelsea v. Haines, 41 N. H. 246; Southwestern Freight Co. v. Stanard, 44 Mo. 71 (100 Am. Dec. 255); Shelton v. Franklin, 68 Ill. 333; Straus v. Minzesheimer, 78 Ill. 492; Crofoot v. Bennett, 2 N. Y. 258; Groat v. Gile, 51 N. Y. 431; Burrows v. Whitaker, 71 N. Y. 291 (27 Am. Rep. 42); Dennis v. Alexander, 3 Pa. St. 50; Galloway v. Week, 54 Wis. 608 (12 N. W. 10); Caywood v. Timmons, 31 Kan. 394 (2 Pac. 566). That the cases referred to settle the general principle, at least for this State, is beyond question or cavil. Presumptively, the title does not pass, even though the articles be designated, so long as anything remains to be done to determine the sum to be paid; but this is only a presumption, and is liable to be overcome by such facts and circumstances as indicate an intent in the parties to the contrary."

It is believed all the cases cited by counsel come within the law as announced in these cases. If they do not, the court, in disposing of them, misapprehended the facts, for there has been no intention upon the part of the court to depart from the law of these cases.

In Whitcomb v. Whitney, supra, after the agreement was made, advances had been made upon the agreement, and, after the lumber was manufactured, the defendant was notified of that fact. He sent an inspector, who came to the mill, and inspected all of the lumber. It was

drawn 40 rods to a dock, ready to be loaded upon the vessel when one should be sent by defendant. Under the circumstances of that case it was held the title passed.

In Jenkinson v. Monroe, supra, the agreement recited: "The party of the first part agrees to sell, and does hereby sell, and said parties of the second part agree to buy, and do hereby buy, all the lumber," etc. "The price of said lumber shall be fourteen dollars per M. feet, straight measure. Mill culls to be marked," etc.; "price at the time they are delivered on dock."

The logs were cut into lumber, which was delivered on the dock. The court held:

"The piling on the dock seems to have been intended by both parties as a delivery of the lumber to defendant, who could thereafter ship it without reference to plaintiff."

In People v. Sheehan, supra, it was agreed that Holmes should sell Sheehan curbstone, and that Sheehan should select it at Holmes' yard, "and when the curbstone was thus picked out, and delivered to Sheehan, it should belong to Sheehan, and Holmes would have nothing more to do with it." The court held the parties had agreed when the title should pass, and were bound by their agreement.

What are the facts in this case? Plaintiff and defendants both lived in the State of New York. The lumber was in charge of defendants' agent at Cheboygan, Mich. They offered to sell this lumber to plaintiff, one quality at $15.50 a thousand feet, and the other quality at $9.50 a thousand feet. It could not be known how much there was of the lumber, nor how much there was of each of these qualities, until the lumber was inspected. An inspector was agreed upon, who was to act for both parties, and who was to be paid equally by them. There was no change in the possession of the lumber. It still remained under the control of Mr. Rogers for the defendants. It was in his possession when it was replevied. The defendants retained their insurance upon

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