l^ontract: personal property: evidence. The action is for wood sold and delivered. It is not for wood bargained and sold with allegations of failure to receive, and consequent damages, To recover then, the plaintiff must prove a 3 x x sale and delivery. His own testimony establishes an agreement to sell; that of Messer negatives such an agreement. As the plaintiff was corroborated on this point, and as the court found for him on the question of fact as to the existence of such an agreement, there would be, so far, no ground for an appellate court to interfere.
But an agreement to sell is not, under the allegations of the petition, sufficient, even though there was a refusal to receive, and resulting damages. The plaintiff must, under the pleadings, prove a delivery of the wood. This, the evidence failed to show, at least with such certainty as to justify the finding of the court.
The evidence showed that the plaintiff put on the track 250 or 300 cords of wood; that there was this amount on the track in March, 1865, when plaintiff requested Messer to measure it; that Messer refused to measure it, and this suit is brought for only 168f cords. Now it does not appear that the wood sued for, that is, *476the 168f cords, was ever separated from the mass. Nor does it appear what became of the balance. What became of the balance might be a very material inquiry in determining the rights of the parties. For example, if the defendant afterward took the balance and paid for it, this circumstance might tend, and would tend, unless explained by some other act, to show that the defendant regarded the wood as delivered to and belonging to it.
On the other hand, if the balance was, after the refusal of Messer to measure, taken away and controlled by the plaintiff, if he continued to exercise the rights' of an owner over it, this would be a circumstance against the plaintiff’s theory, which is, that under the contract, the property in the wood passed when it was delivered or-placed on the track, or at least when the time for measurement had elapsed- Unless such was the intention of the parties, the title would not pass until the wood had been delivered and received by the company.
Parties might make a contract, that the wood should be the company’s when placed, and as soon as placed, on the track. If the real contract and understanding of the parties was, that as soon as the wood was delivered on the track, the company might at any time, without waiting for the end of the month, or without further consulting the plaintiff, use the wood, this would be strong evidence, that they regarded the wood as theirs from the time it was put upon the track, and if it was theirs, they would be bound to suffer the loss arising from casualties by fire and -water. Gardner v. Lane, 9 Allen, 491; Riddle v. Varnum, 20 Pick. 280.
If on the other hand, the contract (as explained by usage or mode of prior dealing between the parties, as to winch there was no evidence) was, that the wood should be put upon the track, that the company had the right to inspect and receive or reject, as it saw proper, then, certainly no *477title would pass until it liad been received. Cook v. Logan, 7 Iowa, 142; 2 Kent’s Com. 495; McDonald v. Hewett, 15 Johns. 349; Joyce v. Adams, 8 N. Y. 291; Ward v. Shaw, 7 Wend. 404; Outwater v. Dodge, 7 Cow. 85; Edwards v. Grand Trunk Railway, 48 Me. 379; Story on Sales, § 296; 1 Parsons on Contracts, 441; Chitty on Contracts, 396, and notes and authorities.
The rights of the parties depend essentially upon the exact contract. This may, as above stated, be explained or made clear by usage and the mode of dealing between the parties. Evidence in this respect is entirely wanting, as also in other material points; such as what became of the balance of the wood placed upon the track and not -sued for. In other respects it is vague, and that, too, in points evidently susceptible of explanation. As proof of delivery was, under the pleadings, absolutely essential to the plaintiff’s recovery, and as the evidence is not satisfactory to us on this point, and did not, as the case stood, justify the findings, we reverse the judgment and remand the cause for a new trial. In the course of this opinion we have indicated some of the material points involved, so that the cause may be retried with reference to them.
Reversed.