The opinion of the court was delivered, by
Woodward, C. J.The two agreements of 28th May 1863, which are to be taken together as constituting only one, define and regulate all the rights of the parties that are litigated in this suit. Beyond all doubt, Corbett acquired an equitable estate in the lands, mills, &c., to be perfected by a conveyance of the legal title to an undivided third of the premises at such time as he should have manufactured, in the manner provided, and delivered to Lewis & Nelson, boards and shingles sufficient to pay the cost of saw-mills and manufacturing. But, until that time arrived, Lewis & Nelson were to have full and entire control of the sale of said lumber.
Now, this action of replevin is founded on the assertion that Corbett had not attained the limit prescribed in the agreements, was not, therefore, entitled to a conveyance of title to a third of the premises, and yet, that instead of delivering the lumber to *330Lewis & Nelson, at Pittsburgh, as provided in the agreement, he had set up a claim of property to it, and was about to dispose of it on his own account before it reached Pittsburgh. These grounds, if well laid in the evidence, were sufficient to sustain the action. Eor, though the learned judge may have put it too strongly when he denied that Corbett could have any interest in the lands until he had fully paid up, yet his equitable interest in the land did not entitle him to the possession of the manufactured lumber for purposes of sale. Eor purposes of manufacture and transportation he had the lawful possession of the lumber, but full and entire control of the sale of said lumber was expressly vested in Lewis & Nelson, and when it was brought to Pittsburgh, or any other point of market at which they chose to exercise their exclusive right of sale, he was bound to deliver it to them, and they might enforce their rights and his duty by an action of replevin. His equitable and contingent interest in the land gave him no right to control the sale of the manufactured lumber. And this, not because his title was inchoate, but because he had divested himself of dominion over the lumber by the agreement. His rights were all derived from the agreement, and they must be limited and controlled by it. One tenant in common of lumber-lands may certainly agree that if his co-tenants will furnish all the supplies for the manufacture of the lumber, they shall have exclusive control of the sale of it. And this will give them the right to exclusive possession for the purposes of sale. Their liability is to account to him for the proceeds of the sale, but their right to make the sale, and for this purpose to demand the possession, is as unquestionable as the terms of the agreement. Corbett was entitled to a credit on the land contract of $8 per 1000 feet for the boards, and $1.75 per 1000 for the shingles, and an action’ of account or a bill in equity would have been the appropriate form for enforcing this right, but the court submitted the question to the jury in this action. “If, therefore,” said the learned judge, “ the defendant, at the date of issuing and service of the writ of replevin, had not delivered to the plaintiffs sufficient lumber to pay all advances for purchase of land, erection of mills, and cost of manufacturing and delivering said lumber in market, he had no title under and by virtue of the said contract .to the lumber in question, so far as the same was manufactured out of the timber grown and cut on the plaintiff’s land.”
To this the plaintiff in error has no right to object, for it gave him a chance, in this action, to satisfy the jury that he had paid for his third of the land, and if they had found the fact so, the consequence would have been fatal to the plaintiffs’ action, for then Corbett, having performed his part as a purchaser, would have been entitled to his deed, would have been a tenant in common, the exclusive right of sale in Lewis & Nelson would have *331been at an encl, and they could no longer assert a right to exclusive possession. But the jury did not find the fact in Corbett’s favor, and the consequence is that he remains subject to the terms of the agreement, which, as before stated, clearly entitled Lewis & Nelson to exclusive possession of the lumber for purposes of sale.
The court is complained of for submitting, without evidence, the question whether Corbett was intending and endeavoring to sell the lumber short of the Pittsburgh market, but even if well grounded, we see no force in the complaint, because Lewis & Nelson’s right of sale was absolute and exclusive upon the agreement, and did not need to rest upon an ascertainment of the fact suggested. Corbett bound himself to deliver at Pittsburgh, but that was for their benefit, and they might waive their rights ánd demand delivery above Pittsburgh. It was like a power revocable at the pleasure of the principal, or like a bailor demanding possession of his own goods in transitu. If Lewis & Nelson found out a better market than Pittsburgh, the agreement permitted them to avail themselves of it, though if Corbett had already incurred the expenses of running to Pittsburgh he would be entitled to them in his account with Lewis & Nelson.
It is argued that if the lumber had been levied on as Corbett’s property, either at the mill, or while in transit, a sheriff’s sale would have passed a good title, and for this the case of Mitchell v. The Commonwealth, 1 Wright 187, is relied upon. That was not a case of bailment, at least it was not so stated, but of a lease that amounted to a purchase of the goods, and it was said they would be liable to levy and sale in the hands of the purchaser, though he had not paid for them, but here, upon our construction of the agreement, Corbett, though holding an equitable interest in the lands, was to have no property in the timber severed from the freehold until he had manufactured enough, at the specified rates, to reimburse the capitalists their outlays. The manufactured lumber must have been the exclusive property of Lewis & Nelson, else they could not have the “ full and entire control of the sale of it.” What Corbett had in it was a right to charge the specified prices against their advances. His labor mixed with the lumber was to be compensated in this manner, but the property in the lumber, until advances should be reimbursed, was in Lewis & Nelson, and not in him, and, therefore, we cannot admit that a sheriff’s levy or sale of the lumber as his property, would have passed any title whatever.
The only remaining assignment of error relates to that portion of the lumber which was manufactured out of timber not grown upon the plaintiff’s lands, but the only ground of complaint here is that there was not evidence to raise the question which the *332court submitted to the jury.' I say the only ground, for if there was such evidence no just exception can be taken to the instructions. If Corbett bought the timber as the agent of the plaintiffs, and with their money, the jury were properly instructed that the property would be in the plaintiffs, and not in him. But, was there evidence ? It is indeed slight, though Newton Taylor says of the logs he put in as a part of the Clark lumber, that he understood they were for Lewis & Nelson. Corbett bought the timber, but from the drafts, receipts and letters that passed between the parties, it was possible for the jury to infer that these purchases were made on the general account of the mill.
But there was a part of the charge which covers this lumber, that is not assigned for error. It was the part that related to the confusion of goods. Now if the jury failed to find evidence that Corbett acted as agent for Lewis & Nelson, in buying lumber from other lands than theirs, to be manufactured at their mill, and so found him to be the owner of such lumber, yet if he confused and mixed it with theirs, and made his boards undistinguishable from theirs, the instruction was that he would lose his property, and this is not assigned for error.
Whatever the mistake in submitting the question of agency without adequate evidence, here was a view of the case, acquiesced in by the plaintiff in error, which justified the jury in finding a verdict against him.
On the whole, therefore, we find none of the errors sustained, and accordingly the judgment is affirmed.