The opinion of the court was delivered by
Hebard, J.From the contract, under which the wood in question was delivered, it appears that the quantity to be delivered, except as limited by a minimum and maximum, is not expressed ; — that the time of delivery, is all the time between the date of the contract and the first day of July after, —and the place of delivery, on Gibbs & Byram’s dock; and the kind and quality of the wood is expressed in the same general terms. The question is, whether there was such a delivery of the wood that was carried off by the flood, as to vest the property in the defendants, and entitle the plaintiff to recover the pay for it ? If the plaintiff has done every thing agreeably to the terms of the contract, there can be no doubt of this, unless the parties have, in some way, varied or enlarged the contract, subsequent to its inception ; and this is not shown to have been done, so far as the simple fact of a delivery is concerned.
It appears from the auditors’ report, that the place of delivery was varied, by mutual consent of the parties, as to a part of the, wood. This is different from a contract to de*343liver a certain specified amount, or value, of specific articles, in payment of an antecedent debt. In that case, the whole amount due must be delivered on the farthest day named. In this case, two things are to be noticed-; first, the quantity of wood is such as to render it impossible that the whole should be delivered in one day ; the other is, that the phraseology of the contract is such as to imply that it was to be delivered on different days, — and the ultimate quantity was not specified — only the largest and smallest quantities. The expression in the contract is not, on or before a certain day, nor on a certain day, — but it is to be delivered before the first day of-July. Whatever wood was delivered agreeably to the contract, became the property of the defendants ; and the plaintiff had no right, afterwards, to take it away.
The defendants, to some degree, assented to what was done. One of them was present when some of the wood was delivered, and assented to the place of depositing it.
The case of Zagury v. Furnell et al. 2 Camp. 240, is cited by defendants to sustajn their objection, for want of a delivery. The governing principles in the two cases, are not similar. The question of delivery is a question of fact, and must,'of necessity, be governed, in a great measure, by the nature of the transaction, and the nature and circumstances of the property to be delivered. This wood, by the written contract, was to be delivered on Gibbs & Byram’s dock ; but the parties, afterwards, varied this part of the contract, by parol. In other respects, it is evident they intended to be governed by the written contract; and the auditors have found the fact, that the wood was delivered according to that contract.
In the case of the goat skins, in the case referred to, there was no delivery, and nothing that the parties talked about as a delivery. They talked about a sale of the skins ; but the case finds that the usage of trade was to count them over, and the duty of the seller to do so, to see whether the bales contained the number specified in the contract; and before any of the skins had been counted, the whole were destroyed by fire, at the wharf where they lay, at the time of the sale. The buyer had never received them. They had not been moved, after the sale, and were not placed where they were, by any consent or' agreement of the buyer; nor was *344the place of delivery any part of the contract of sale. In all these particulars, it varies from the present case. The wood had been delivered at the stipulated place, within the time agreed upon, subject to the defendants’ convenience; and would have been measured but for the neglect of the defendants.
The plaintiff applied to the defendants to measure the wood, and they told him that Boardman would measure it; and he called upon Boardman, a number of times, but he neglected to do it, till after the wood was carried off.
We, therefore, think that the plaintiff had done all that he could do, and all he was bound to do, to fulfil his contract.
The judgment of the county court is affirmed.