The contention in this case is whether title to the wood delivered by plaintiff to defendant, passed upon the delivery and before payment. Plaintiff claimed that payment was.to be made immediately upon delivery, and that such payment was a condition upon the performance of which defendant should acquire title. The contract was verbal. It was for the jury to determine what the contract was. Its terms, as stated by the plaintiff and his witnesses, would authorize a jury, if they believed the testimony, to find that payment was to be concurrent with delivery, and that the title did not pass until payment was made. The rule of law is fully stated in Ballantyne v. Appleton, 82 Maine, 573. See also Furniture Company v. Hill, 87 Maine, 22.
It was also claimed that if the sale was originally conditioned upon payment, the condition had been waived by the plaintiff; that his conduct after the delivery was evidence of such waiver. Whether he intended to waive the condition, and change a conditional to an absolute sale on credit, -was a question of fact to be determined from the evidence. His acts, as testified to, subsequent to the delivery, were to be weighed, as bearing upon that question. They were not of such a character as to amount to clear proof of waiver, but were explainable, consistently with his claim of a conditional sale. Its determination fell peculiarly within the province of the jury. Upon neither question, was the evidence so clear and free from doubt, as to justify ordering a nonsuit, but the whole case should have been submitted to the julT'
Exceptions sustained.