Tbe questions in tbis case arise entirely upon tbe finding of tbe court below, there being no bill of exceptions. Upon tbe facts found, it seems impossible to bold tbat there was such a delivery and acceptance of tbe logs in controversy ■as would pass tbe title or ownership to tbe plaintiff. In order to sustain tbe action it must appear tbat there was a perfect and complete sale, so. tbat tbe right of property in tbe logs and tbe risk of loss were transferred to tbe purchaser. It is hardly necessary to remark that an actual or constructive delivery was essential to a complete sale. Tbe court found, in substance, tbat tbe plaintiff, in tbe fall of 1873, entered into a verbal contract with tbe defendant John McDonald, whereby it was agreed tbat McDonald should get out and furnish for him logs during tbe following winter or logging season, and •deliver them at tlic lake shore, at tbe mouth of Onion river, near Bayfield; and tbat tbe plaintiff was to pay for tbe logs at tbe rate of $4.50 per 1000 feet. It was mutually understood .at tbe time tbat McDonald could and would furnish and deliver on tbe contract a half million feet of logs; and, while be should be engaged in getting out tbe logs, the plaintiff agreed to let him have such goods and provisions as be might need, upon tbe credit of or in part payment for tbe logs. In tbe performance of tbe contract, McDonald got out logs estimated by him to amount to tbe stipulated quantity, and placed them at or near tbe place of delivery, and notified tbe plaintiff thereof; and at tbe same time informed tbe plaintiff tbat be could get out and furnish at tbe place of delivery a considerably larger quantity during tbe winter; .whereupon it was agreed between tbe parties tbat tbe previous parol contract should extend to and apply to all tbe logs which McDonald could furnish and deliver during tbe season. Accordingly, during tbe remainder of tbe logging season, which lasted until *504tbe 12th of March, 1874, McDonald went on and got out more logs, placing them at or near the point of delivery, which was upon land that he was in possession of as owner. The court found that the contract was silent as to when, where or by whom the logs should be scaled for the purpose of ascertaining the quantity furnished by McDonald; and it does not appear that any measurement has ever been effected. The court, however, found that there were at least 721,347 feet, and that some out of the whole lot, not included in this amount, were washed from the beach into the lake, and lost. The plaintiff advanced to McDonald, prior to the 12th of March, 1874, under the contract, goods, provisions and supplies to an amount of $1,300 or $1,400, and afterwards paid him, on account of the logs, in money and goods from time to time prior to the 9th day of August, 1874, the further sum of $1,700 and over. Prior to the 8th of August, 1874, the logs still being at the place where McDonald had left them, McDonald sold and delivered a portion of them to his codefend-ant, Vauglm, 160,000 feet of which Vauglm took on that day into his own possession and carried away, claiming the same as his own property. And the'action is to recover for the conversion of this portion of the logs thus earned away.
These are the material facts stated in the finding, bearing upon the question of a sale and delivery of the property. And the question is, Do they show a complete and perfect sale, and do they warrant the conclusion of the court below that the logs became and were the property of the plaintiff as soon and as fast as they were placed by McDonald at the place of. delivery designated in the contract? It seems to us the facts do not give rise to any such conclusion or presumption of law. It was doubtless competent for, the parties to agree that placing the logs at the point designated in the contract should be a delivery, so that the right of property and the risk of loss should pass to the plaintiff. Then, as the logs were deposited at the proper place by the vendor, they would at once become *505subject to the power and control of the purchaser, who might deal with them as he saw fit. Nor would the fact that the logs had not been scaled make any difference or prevent the sale from being complete, where it appeared from the contract that the parties intended that the title should pass as soon as they were placed or delivered at the proper place. Morrow v. Reed, 30 Wis., 81; Morrow v. Campbell, id., 90; and Sewell v. Eaton, 6 id., 490. “ Although, ordinarily, so long as anything remains to be done by the seller, the goods are at his risk, yet this general rule may be overcome by the special facts of the case; and if it clearly appears to have been the intention of the parties that the property should be deemed to be delivered, and the title to have been passed, and especially if their acts be inconsistent/with any other view, the mere fact that something remains to be done will not govern such intention.” Story on Sales, § 298 a. But this rule has no application to the case at bar. For the court does not find’that the parties agreed that as fast as the logs were deposited at the place designated, the title should vest iij. the plaintiff, and that the property should be at his risk. And the facts found do not justify the inference that this was the contract. On the contrary, the facts fairly give rise to the presumption that the contract came within the application of the usual rules governing such agreements, and that the parties did not intend there should be a delivery and the title pass until the logs. were inspected by the plaintiff and the quantity ascertained by the proper measurement. ”W"e do not suppose the plaintiff was bound to accept all the logs which McDonald might deposit at the point designated, if any were unfit for use.- The fair presumption is, that the parties intended the logs should be examined, or at least that they should be scaled and the quantity ascertained, and that until this was done there should be no delivery and acceptance of the property. In this case the goods were bulky and incapable of manual delivery; but there could be a constructive delivery which would operate as *506a direct transfer of tbe ownership and right of property; and this was essential to a complete and perfect sale. And where there was a transfer of the light of property, there would necessarily be a transfer of the risk of loss, so that, if the logs were washed away or otherwise destroyed, the loss would be the loss of the purchaser. But we do not think the transaction in this case amounted to a complete sale, or was attended with any such legal consequences.
We hare thus far considered the question whether the facts found showed a complete and perfect sale, assuming that the parol contract was valid. But it is obvious, unless the contract was fully executed by a delivery and accej>tance of the logs, it would be within the statute of frauds. The subsequent payments would not have the effect to take the contract out of the operation, of the statute, within the doctrine of Bates v. Chesebro, 32 Wis., 594; Same Case, 36 id., 636.
As the evidence in the case is not before us, we are reluctant to make a peremptory order in regard to the entry of judgment. We have therefore concluded to reverse the judgment, .and send the case back with an intimation that the circuit bourt should grant a new trial if satisfied that the rights of the parties and the cause of justice will thereby be promoted; otherwise, to dismiss the complaint. This was the course pursued in the case of Law v. Grant, 37 Wis., 548-568; and we think it best to remit this case with a similar suggestion.
By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.