delivered the opinion of the court:
The trial court did not err in sustaining the motion to strike out part of the first paragraph of the amended answer filed in this case. The averments stricken out were obviously mere conclusions of law and had no proper place in the pleading.
No issue was made by this answer touching the purchase of wire by appellees for appellant, the same together with the value thereof, being admit ted; nor did the answer deny a request by appellees, within the time specified in the contract, to bale the hay and turn over the same at Cadoa station. Hence there were no issues touching these matters and no error was committed in the rulings upon them.
The vital question in the case relates to ownership of the hay under the contract. If this contract was merely executory and the title, therefore, remained in appellant — the vendor — he must suffer the loss occasioned by the fire and flood; and in that ■ event, appellees should recover the sum advanced at the time the contract was made. But if, on the other hand, the contract constituted a completed sale and the title immediately passed to appellees — the vendees — then they must suffer this loss and appellant’s counter-claim or demand for the balance of the purchase money should be sustained.
Upon few subjects have so many opinions been written as upon the character of such contracts— whether executory or completed sales — and the tests for determining when the title does or does not pass thereunder. It is uniformly conceded that this question is one of intention and that the intention of the parties to the contract must govern. But in arriving at such intention it often happens that serious difficulties are encountered.
*447Conspicuous among these difficulties is that of ascertaining when the construction of the contract in this regard ceases to be a question of law for the court and becomes one of fact for the jury. That is (1st) when the court is justified in rendering judgment on the pleadings, or in taking this question of intent from the jury by an instruction; or (2d) when the matter of intent must, by a suitable charge, be submitted to the jury for decision.
The present case is an excellent illustration of this difficulty. The record presents strong indicia to support either view under the contract involved.
The duties of the vendor subsequently to “bale and weigh the hay”; to furnish hay “sound; sweet and of good color,” “clean, merchantable hay,” hay “equal in all respects to the samples” upon which the purchase was made; to deliver the hay on board the cars at Cadoa station, receiving payment therefor in cash on the dates of delivery — he retaining control thereof for such purposes; these provisions tend to give the instrument the character of an executory contract, leaving title in Prowers, the vendor.
Such features of the contract, unqualified, bring it within the general rule: that where anything remains to be done to ascertain and identify the subject of sale, or that is necessary to put the property into suitable condition for acceptance by the purchaser, the transaction represents an executory contract only. And if they were to be considered alone, the action of the trial court should be sustained in determining the question as a matter of law and rendering judgment on the pleadings.
But, on the other hand, the contract also declares that “first party has sold to second party five ricks, ’ ’ etc.; that the hay is to be delivered on dates before June 1st, 1902, “at the option” of second *448party; that “second party shall advance $200.00 on this contract, receipt of which is hereby acknowledged.” These declarations, when coupled with the allegation of the answer that, on the date of the transaction, “said hay was delivered to the plaintiffs in the stack at the place where the same stood, ’ ’ tend strongly, notwithstanding said rule of construction, to- show a present sale passing title1 to the vendees.
As we view the case, however, it is not now necessary for us to determine which of the foregoing conclusions should be adopted; nor would it be proper for us to do so. And we are of opinion that the trial court should not have assumed this responsibility in the premises.
True it is, that in cases of ambiguity or doubt on this subject, the rule of construction above alluded to and others are invoked as a guide to assist the court on the one hand in determining the intent as a question of law, or to aid the jury under proper instructions on the other hand in determining such intent as a matter of fact. The remainder of these rules are familiar and need not be here stated. — See Elgee Cotton Cases, 22 Wallace 160, and Benjamin on Sales (7th ed.), 293 et seq.
But under all the circumstances and especially in view of the allegation in the amended answer that an actual delivery of the hay to appellees took place at the time the contract was made, we think that this is one of the cases where evidence touching the intent of the parties should have been received. That is to say, it was impossible, upon the present state of the record, for the trial court, even with the aid of those rules of interpretation, to safely determine this question as a matter of law. Opportunity should have been given appellant to offer evidence showing a present delivery of the hay, and other proper proofs *449upon this matter of intent; appellees also producing such appropriate testimony on the subject as they might desire to offer. Such evidence would, of course, not be admissible for the purpose of changing’ or modifying the terms of the contract. Its sole function would be to- bring before the court' or jury such collateral facts and circumstances as would reveal the true intention of the parties either to retain, for the time being, title, to the hay in the vendor, or to at once pass such title to the vendee.
Supporting the view that, in the present cause, the question of such intention should, proper evidence being received, be determined by the court as a matter of fact, or submitted to the jury under suitable instructions, if a jury be called, see the following authorities: McClung v. Kelley, 21 Iowa 511; Caywood v. Timmons, 31 Kan. 402; Hatch v. Oil Co., 100 U. S. 124; Dyer v. Libby, 61 Me. 47; Graff v. Fitch, 43 Ill. 373; 1 Parsons on Contracts (6th ed.), 528; Blackwood v. Cutting Packing Co., 76 Cal. 212; Cornell v. Clark, 104 N. Y. 451.
For the reasons above given, the judgment will be reversed and the cause remanded. Reversed.
Chibe Justice Steele and Mr. Justice Maxwell concur.