The opinion of the court was delivered by
Powers, J.Odie written contract of August 2, 1882, was an executory agreement on the part of the plaintiffs to sell to the defendant 300 cords, more or less, of bark peeled and impeded, delivered at Groton Pond, at $8.50 per cord, to be measured on the ground or in the car at the option of the plaintiffs.
The quality of the bark is not in dispute; but the parties differ as to the-mode of measurement chosen by the plaintiffs, and a special verdict of the jury was taken, in which there arc manifestly inconsistent findings. But we think the finding of the jmy in answer to the 1st, 2d and 3d special questions submitted to them makes these inconsistent findings immaterial.
An executory agreement for the sale of goods upon special *12terms becomes a perfected bargain and sale by a delivery to and acceptance of the goods by the vendee unless.fraud or imposition is practiced.
The hart ivas seasonably delivered at Groton Pond, and the defendant was engaged in loading it into cars when the fire occurred that destroyed the bark that had not been shipped away.
The jury found, upon competent evidence and under proper instructions, that after the hark was delivered upon the ground at Groton Pond the defendant accepted and assumed control as owner of it; and that it was the intention of the parties, after the making of the contract, that the jrroperty in the bark should pass to- the defendant when it ivas piled and lay upon the ground, and before it was loaded into the cars.
The acceptance of the bark-under the written contract must necessarily be an act subsequent in time to the date of the contract, and is the only act in this case essential to constitute a bargain and sale of the bark. Tig it the executory becomes an executed agreement. When the defendant accepted the bark on the ground at Groton Pond, the place of delivery, and assumed control of it as owner, the title ivas at once vested in him, and the measurement, whether on the ground or in the cars, was a ceremony that did not affect the question of title, but merely determined the sum due as purchase money. Under the written contract, if the defendant had elected to stand on his rights as there specified, the title would not pass to him until the plaintiff' had delivered and measured the hark bargained to he sold.
When so delivered and measured the defendant was hound to accept the bark under the contract, and pay the stipulated price.
Put he elected to accept the bark in gross, and actually took control of it as 'owner, and this has effect as a waiver of the precedent condition of measurement specified in the. writing, and operates to pass the title to the hark in gross.
In the view we take of the acceptance of the bark by the de-*13fondant, it is immaterial whether the court gave the proper effect to the declarations of Harris, though we see no error in this respect.
An interrogatory was put to McLean, plaintiffs’ witness, as follows : "Where was this bark to lie measured? in the yard where it was delivered, or in the woods before it was delivered ? ” An examination of the -context in McLean’s deposition discloses the patent fact that there were only two possible places of measurement referred to by the witness. The defendant objected to all but the first sentence of this interrogatory. If the evidence was objectionable on the ground that it tended to prove a contract between other parties, and thus could not lie received to prove a contract between these parties, the whole of thc-inteiTogatory should have been objected to. The first sentence calls, in fact, upon the witness to state which of two places was the place of measurement, and the questioner made the matter no more definite or suggestive by specifying the alternative than he had done in the first sentence.
The judgment is affirmed.