delivered the opinion of the court.
1, 2. Before considering the errors alleged it seems proper to consider the nature of the alleged contract. It is claimed by the defendants in their'testimony that on the tenth day of May, 1913, they entered into an agreement with plaintiffs to purchase the entire 1,000 cords of wood lying in the woods near Anderson Station, and agreed to pay therefor when delivered on board the cars or piled near the track the sum of $2.75 and $3.25 per cord. When the payments were to be made or in what quantities or at what times the wood was to be delivered does not appear. This is clearly an executory contract, and no title passed to any wood until it was delivered. If it had burned in the woods, the loss would have fallen on the plaintiffs. In case of a failure or refusal to deliver, defendants would have had an action against plaintiffs for breach of the contract, but no action of replevin to recover the wood, because the labor of hauling and piling near the station or placing on the cars were as much a part of the consideration for the price to be paid as the wood itself. So it may be premised that the defendants did not own any part of this 1,000 cords which they claim to have purchased, except such as had been put on board the cars or had been piled alongside of the track with the intent to deliver it to them. If the contract was entered into and the 71 cords which defendants took was part of this wood, defendants, in the absence of notice to the contrary, had a right to assume that it was piled there in pursuance of the contract, and *228Were not guilty of wrongful taking and conversion by hauling it away; and the court so instructed the jury, saying among other things:
“If you find that the wood was delivered there under an agreement to sell and deliver 1,000 cords of wood, and the defendants took the wood, they in that event had the right to take it, and they may defend upon the ground that it was a delivery of a part of the 1,000 cords, and there was no conversion whatever in the ease.”
This was, in substance, the same instruction upon that subject that was requested by defendants, which was as follows:
“If you find from the evidence that the plaintiffs entered into a verbal contract with the defendants, by which the plaintiffs were to deliver at Anderson Station for defendants a quantity of wood, and that in fulfillment of that contract the wood, or any portion thereof, was delivered to defendants at Anderson Station, then I instruct you that the taking by the defendants of such wood so delivered would not be unlawful, and there was no conversion of the plaintiffs’ property by the defendants, and your verdict should be for the defendants.”
3. The second requested instruction was properly refused. The action was in tort, and the authorities agree that a counterclaim arising out of contract cannot be maintained under such circumstances. This was so held in Loewenberg v. Rosenthal, 18 Or. 178 (22 Pac. 601), find followed in Krausse v. Greenfield, 61 Or. 502 (123 Pac. 392, Ann. Cas. 1914B, 115). See, also, Scheunert v. Kaehler, 23 Wis. 523, a case very similar to the one at bar, and People v. Dennison, 84 N. Y. 272, 280. The latter ease also holds that the objection to the sufficiency of the counterclaim is not waived by failure to demur to the answer. In the present case this position becomes still stronger from the fact that, *229while the matter pleaded as a counterclaim was not good as such, it constituted a valid defensive answer, and was so treated by the court. There was left in the case just one question to be tried, namely, whether the contract alleged by the defendant was actually made. This was properly submitted to the jury by the instruction above quoted, and by its verdict for the plaintiff it necessarily found that no contract existed.
Taking the instructions as a whole, they fairly presented the law, and were quite as favorable to the defendants as the pleadings and proof warranted.
The judgment is affirmed. Affirmed.
Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.