The question in this case is on whom must fall the loss of the 2,145 feet of lumber destroyed by fire on May 24, 1899, and that depends upon the question as to whether the title was at that time vested in. the plaintiff or'in the defendant.
The agreement was not for any specific lumber finished and ready for delivery. It was for 10,000 feet of lumber* 6,000 to be of a certain quality-and finish, and 4,000 of another, a part to be-ready at defendant’s mill by May fifteenth and the remainder by June first. The defendant then had in his mill yard 25,000 or 30,000 feet of lumber, from which it was contemplated by the parties -that the lumber for the plaintiff should be selected, planed and prepared by'the defendant, but no part of that lumber was set apart or designated by the parties, as the property of the plaintiff.- The contract was purely executory on the part o‘f the defendant, and under it he retained title to the 2,145 feet in question until it should be set apart for the plaintiff in its completed state and she duly notified that it was ready for delivery. (Comfort v. Kiersted, 26 Barb. 472; Halterline v. Rice, 62 id. 593; Higgins v. Murray, 4 Hun, 565; Bliss Co. v. U. S. Incandescent Gas Light Co., 149 N. Y. 300.) The plaintiff had no' notice that this 2,145 feet had been completed and no opportunity to inspect or accept it before the fire. If the defendant, after the Completion of this lumber, on the seventeenth of May, had sold and - delivered it to some other customer, it cannot be *361questioned that such purchaser would have had a good title. The title was in the defendant at the time of the fire and he must bear the loss.
The judgment of the County Court a,nd of the Justice’s Court should be reversed, with costs.
All concurred. -
Judgment of the County Court and of the Justice reversed on the law and facts, with costs of this court and in the courts below.