The petition alleges that in November, 1905, plaintiff entered into an agreement with defendant for the sale of elm, cottonwood, maple and birch logs, none to be less than eight inches in diameter at the top and none less than ten feet in length, said logs to be delivered on the river bank on plaintiff’s land, and to be paid for by defendant at the rate of $5 per thousand feet. Under this contract he alleges that he delivered to defendant thirty-nine thousand feet of logs which defendant inspected, and then paid to plaintiff on the agreed price thereof the sum of $40, leaving a balance of $155 due and unpaid, for which sum, with interest, recovery is demanded. The defendant admits it entered into an oral agreement with
So far as the testimony bears upon the agreement and intent of the parties concerning the delivery, it may be epitomized as follows: At the time of the contract, no particular trees were specified or pointed out. The species, dimensions, and quality were stipulated for, but the timber from which the logs were to be cut and put in shape for
1. Sales: passing of title: This question is one frequently arising and authorities bearing thereon are very numerous. The precedents, English and American, are not altogether harmonious, but the general rules which obtain in this and many other jurisdictions may be considered well settled, though inconsistency in applying them to apparently similar states of fact is by no means uncommon. Broadly speaking, the question when the title fo personal property passes is dependent upon the intention of the parties; and, where there is any dispute as to the terms and material circumstances of the agreement, it is a question for the jury to determine. Where, however, there is no material conflict in the testimony or the terms of the agreement are admitted, the intent of the parties is ordinarily for the court to pass upon as a matter of law.
1. Same: when title passes. In the absence of a proved intent otherwise, a sale is not complete, and title does not pass so long as anything remains to be done between the parties. The article must be designated and its identity ascertained. If it be part of a greater mass or bulle, it ^ must be segregated or set apart. If sold by weight or measure, the quantity must be ascertained by the
3. Same: delivery. Where, however, the subject of the sale is ready for delivery, title may pass when such is the obvious intention of the parties, even though the quantity is yet to be determined as a basis for computing the amount Welch v. Spies, 103 Iowa, 389; Riddle v. Varnum, 20 Pick. (Mass.) 283.
It must be observed that the rules of law to which we have here adverted have special reference to cases where the specific property which is the subject of negotiation is in existence and is set apart or designated, or is capable of being set apart or designated for delivery to the purchaser. In other words, in, order that there shall be a sale under the application of the rules referred to, the specific goods or property must be definitely ascertained and agreed upon, though, this being done, the quantity may be left to subsequent ascertainment. Allen v. Elmore, 121 Iowa, 241.
4. Same: property not yet produced or prepared tor delivery. When, however, the property has not yet been produced or manufactured, or something remains to be done to put it into condition to comply with the terms of the contract, it is a practically universal rule that the title does not pass until the work of' manufacture dr production or preparation has been completed, and the property accepted by the purchaser. This is especially true where the sale is made dependent upon the quality of the article, and the purchaser
5. Same: saie of logs yet to be cut: • inspection. In the case before us there is little or no controversy as to the facts bearing upon the question under discussion. When the contract was made, the logs to be sold were not in existence, except as part of the forest. The trees had yet to’ be selected, the logs cut and banked, and their quality and quantity 7 x * x 17 ■to be determined. That no title passed at the time the contract was made is so evident that we would not be justified in prolonging this opinion for argument upon that point. The .only debatable question is whether the deposit by plaintiff of a quantity of logs alleged to be such as he had agreed to sell was a delivery to the defendant, or, rather, whether the deposit of these logs at the place indicated was such a completion of the contract, theretofore executory, as to pass the title to the defendant. If the contract had been for the sale of a specific or designated lot of logs all of which the defendant bound itself to receive and pay for at some price when delivered on the river bank, the court or jury might well find that the sale was complete when the logs were thus banked. And this conclusion would not necessarily have been negatived even if the logs had yet to be classified and measured to ascertain the amount of purchase money due. This proposition is well illustrated by the ease of Burroughs v. Whittaker, 71 N. Y. 291 (27 Am. Rep. 42). There the defendant agreed to buy all the lumber, both good and culled,
It is to be observed that this is not a ease of a sale of the specific article and tender of it to the vendee; nor is it even a sale of the goods generally and agreement to deliver, and delivery of them by a day certain; nor is it a sale and delivery by the vendor and acceptance actual or constructive by the vendee of a portion of the property delivered. It is a contract to deliver at a future day property not then in esse, property which is thereafter to be produced by cultivation of the earth, and which is to be of a specified character and description. It comes by analogy within the class of contracts for the manufacture of goods, and for their delivery at a future day. In suchPage 594cases the authorities have abundantly established the general rule that the article must not only be made and offered to the vendee, but that he must accept it, or it must be set apart for him by his consent before the title will vest in him. ... It is obvious that the parties did nob intend, and could not have intended, that a mere tender of the hops by the vendor should pass the title in them to the vendee against his positive refusal to accept them. The hops were to be raised thereafter and were to answer the special description specified in the contract, and were to be of Vermont inspection. The vendee was entitled to examine them, and use his judgment whether they came within the contract. They would not become his property against his consent, although, if he wrongfully refused to accept them, he would be liable in damages. He was not bound by the offer of delivery to accept them and treat them as his own. Where the contract plainly- points to something further to be done by the purchaser, some further right or privilege to be exercised by him before actual delivery takes place and title changes, then the possession and title must be held to remain in the seller, and he must take charge of the property and keep or sell the same as he sees fit. Rider v. Kelley, 32 Vt. 268 (76 Am. Dec. 176).
Upon a sale of goods to be manufactured and delivered at a later date the Maine' court • has held that the title passes only by the assent of both parties. Moody v. Brown, 34 Me. 107 (56 Am. Dec. 640). Of course, such assent need not always be expressed, but may be implied from the conduct and manner of dealing pursued by the parties. In an action upon a contract for the sale of wood and providing that the purchaser should measure before paying for it, such measurement or some other definite act of acceptance has been held necessary to the passing of the title. Pittsburg & St. L. R. R. Co. v. Noel, 77 Ind. 110. To the same effect is Ballantyne v. Appleton, 82 Me. 570 (20 Atl. 235). A sale of growing crop which the seller is to cut and put in stack, and there measure, will not pass title to the vendee until measurement is made. Hughes v.
The respondent made no purchase of the ties as they were from time to time cut. Had a quantity of the trees been consumed by an accidental fire, Daniels could not have recovered their value of the respondent nor the value of the ties which might have been manufactured therefrom. The respondent was not bound to take all the ties manufactured, but only such as were merchantable and suitable for the purpose intended. The ties were to he examined to ascertain this fact, and until so examined and accepted by the respondent the title did not vest in him.
Cases along these lines are very numerous, and, without pursuing them farther, we have to say that, under the rules of law established by these precedents and applicable to the proved or admitted facts in this case, the plaintiff-failed to show a completed sale of the logs. He himself says that the logs were to be inspected to determine whether they were of the kind he had agreed to furnish as well as their measurement. All his conduct is in accordance with the presumption which usually attaches to such transactions that there was to be no transfer of title to the logs until inspection and measurement. When first he requested the scaling of the logs, he concedes that his own work was yet incomplete, and the scaling could not then have been done. When finally the logs had been banked,
Much of the confusion which may be found in the cases upon this question appears to have ¿risen in the failure to discriminate between sales of chattels which are in esse, clearly identified and ready for delivery and appropriated to the contract, and agreements for the sale of chattels of a given kind or quality which are yet to be produced, or to which something is yet to be done by the seller to put them in deliverable condition. In cases of the latter class there is always a strong presumption against any intent to pass title to the property until the conditions of the contract have all been performed. True, a party may buy an unfinished article and agree with the seller to complete it for his benefit, but, as said by the Supreme Court of the United States, the proof of such agreement must be clearly made, “for the intention to pass the ownership by the contract can not be left in doubt.” Elgee Cotton Cases, 22 Wall. 180 (22 L. Ed. 863). See, also, 1 Mechem on Sales, sections 507, 508. This distinction was given effect in Augustine v. McDowell, 120 Iowa, 401, where an agreement to sell a given quantity of corn yet to be harvested, it was held that the title did not pass, though part of the agreed price was paid. On no other principle can we adhere to the doctrine of Cook v. Logan, 7 Iowa, 142, Courtright v. Leonard, 11 Iowa, 32, McClung v. Kelley, 21 Iowa, 509, and other cases of that class, precedents which have been so often approved and followed that we can not consistently disregard them.
It is the contention of counsel for plaintiff that, whatever may be the general rule, the verdict of the jury is
A new trial must be ordered. The judgment of the district court is reversed.