Whether the property in question belonged to the plaintiff, the vendee, or Allis & Co., the vendors, is the principal question in this case. Plaintiff on the 4th day of April, 1881, entered into a written contract with Allis & Co., whereby he agreed to purchase and Allis & Co. agreed to sell him the property.
In the contract we find the following language, viz.:
“ Witness, That the said party of the first part, in consideration of the sum hereafter stated to he paid to them by the party of. the second part, at the time and in the manner hereafter stated, agree to manufacture and furnish, at Milwaukee, Wis., f. o. b. cars, all to be good material and workmanship, the following articles, to wit: ”
Here follows a description of the property in suit as well as some other. The contract further stipulated that “ Mr. Gray shall visit the mill at Marcellus, and the sellers were to furnish plans of arrangement of machinery and work at cost within thirty days from this date if so desired.”
It also stipulated, viz.: “ And the party of the second part hereby agrees to pay for said articles as follows, to wit, cost on receipt *496of goods.” It is hereby agreed that Allis & Co. are to use their best endeavors to have said articles ready for shipment at the time stated herein, and also that they shall be of a stated quality.
The articles specified in the contract were not all manufactured at or shipped from Milwaukee, nor do they all constitute one machine. The frames and rolls make one machine, and the purifiers are a separate machine. Some were shipped the 20th of April from Jackson, Michigan. Some were shipped from Ansonia about the 20th of May, 1881. That shipped at Jackson and Milwaukee is in question. The purifiers reached Marcellus station the last day of April, 1881, and were attached by the sheriff. The former shipped from Milwaukee reached Marcellus the 9th day of May, 1881, and were attached by the sheriff in the freight-house of the railroad company.
As the contract was in writing and provided for the sale of the property, and that it should be furnished on board of the cars free, we are of the opinion that the title passed to the purchaser when the property was thus separated for, set apart to and shipped, consigned to the purchaser. (Caulkins v. Hellman, 47 N. Y., 452.) If the property had been lost by the carrier the consignor could not have maintained an action against the carrier for the loss thereof. (Krulder v. Ellison, 47 N. Y., 36.) The intent of the parties as to when the title should pass of course is to be gathered from the contract and the surrounding circumstances. (Ogg v. Shuer, 11 Eng. Rep. [Moak], 316; Andrews v. Durant, 11 N. Y., 40; Clarkson v. Stevens, 27 Alb. Law Jour., 114.) And when,'as in this case, the facts are not in dispute the question of intent is one of law. (Terry v. Wheeler, 25 N. Y., 525; Parker v. Baxter, 86 id., 596.) There was not such a conflict in the evidence as to the surrounding circumstances, nor such an ambiguity in the language of the contract as to require the question of the intent of the parties as to the passing of title to be submitted to the jury. Kein v. Tupper (52 N. Y., 553) differs from this case. There the cotton was to be weighed by the vendors to ascertain the quantity, and to be sampled by both parties to ascertain the quality, and therefore no title passed until these acts were done.
The case of Hammett v. Linneman (48 N. Y., 399) also differs from the one before us. There was a sale for cash on delivery of *497coal, and the pivotal question was, whether the delivery was such as to pass the title, and whether the acts and declarations of the parties indicated an intent to waive the condition, and that the evidence justified the finding that the condition had not been waived, and therefore no title passed.
Rodgers v. Phillips (40 N. Y., 519) involved the statute of frauds, and it was held that a delivery to a carrier did not answer the statute, as there was no acceptance of the goods.
Here the contract of sale is itself valid, as it is in writing. (Halterline v. Rice, 62 Barb., 593.) The cutter which was to be manufactured had not been completed and ready for delivery, and “ appropriated to the benefit of or set apart for the purchaser with his assent and accepted by him, and therefore it was held that no title passed. It remained in the possession of the vendors unfinished when the vendors assigned and the title passed to their assignees, although plaintiff had contracted for a cutter to be made and delivered to him, which the vendors before they assigned had partially manufactured. The case was unlike the one now in hand.
At the close of the evidence there was a request to have the case submitted to the jury, to ascertain “whether the understanding of the parties was not that this property should be delivered and the title passed at Marcellus Falls instead of Milwaukee,” or “ the intent of the parties; that that would construe the contract as the jury should find upon that intent.” This request was denied, and, we think, properly. No other request was made and no other position need be considered here.
The motion for a new trial must be denied, and judgment ordered for plaintiff on the verdict.
Motion for a new trial denied.
Smith, P. J., and Bareee, J., concurred.New trial denied and judgment ordered for the plaintiff on the verdict.