On the 22d day of August, 1889, plaintiff wrote to defendants as follows:
“Gentlemen: We will order the Muskegon Booming Go-to deliver you 30,000 of our logs, marked 179/ or as many aB it will take to make 3,000,000 feet of merchantable piece stuff; you to saw same, and dead pile lumber on your dock, at $1.50 per M. feet. We will also sell you the lumber from above logs at the following prices, viz., $8.62£ per M. feet for merchantable lumber; $4.50 per M. feet for culls, 6 and 8 feet. Terms, 60 days from date of shipment, which shall be made promptly as fast as cargo is cut and dead piled on your dock.”
Defendants appended the following reply to plaintiffs letter, and returned the letter:
“Gentsi We accept of the above.”
The logs were delivered to defendants before August 28, 1889. Prior to the 29th of October, 1889, defendant^ had cut from these logs 2,882,602 feet of lumber, and the same had been shipped away. On October 28 there was *573upon defendants’ dock, in dead pile, 75,000 feet of lumber cut from these same logs, and between October 28 and November 4, 1889, defendants had cut up 2,877 of said logs, which made 304,100 feet of lumber. On November 4, 1889, defendants’ mill was burned, and this 379,100 feet of lumber was destroyed. Plaintiff sues for the contract price of the lumber, and defendants insist that at the time of the fire the title had not passed. The court directed a verdict for plaintiff, and defendants appeal.
Defendants entered into contracts with third parties for the sale of this entire cut. Two of the defendants’ witnesses testify that, after defendants had commenced sawing the lumber, plaintiff came to defendants’ office, and “asked Mr. Hovey if they were cross-piling the lumber from that stock, and Mr. Hovey asked him why. He said if they were cross-piling it they would put some insurance on it; if they were not cross-piling it, and dead piling it, they would not place any insurance on it.” Plaintiff admits a conversation relative to insurance upon the lumber, but claims that it was had before the contract was entered into.
This contract is not one for the sale of logs. The proposition was to deliver to defendants “30,000 logs, marked 179,’ or as many as it will take to make 3,000,000 feet of merchantable piece stuff,” to be sawed for plaintiff at a given price, or to deliver to defendants 30,000 logs, marked “179,” or as many as it will take to make 3,000,000 feet of merchantable piece stuff, and to sell to defendants the lumber to be manufactured from such logs at given prices. The contract does not provide for the sale of a given quantity of logs at the rate of $7.12J per M. feet for merchantable lumber, and $3 per M. for culls, 6 and 8 feet; but is to pay $1.50 per M. for sawing the lumber, and then to sell the *574lumber at given prices. The lumber was figured and charged at the prices given in the contract, and the saw bill was credited. In plaintiff’s bill of particulars the amount of $27,515.80 is charged to defendants at the rates given in the contract, and they are credited with the'sum of $4,892.55 for sawing.the lumber. The lumber was not cross-piled but was dead piled, as the contract provided. It is clear that no title passed to the logs, and the question is, when did the title to the lumber manufactured therefrom pass? The . rule is well established that,—
“When the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfillment of any conditions; and when by the agreement the seller is to do anything to the goods for the purpose of putting them into a deliverable state, or when anything is to be done to them to ascertain the price, it is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But as these are only rules for con-, struing the agreement, they must yield to anything in the agreement that clearly shows a contrary intention.” Blackb. Sale, 124; Lingham v. Eggleston, 27 Mich. 324; Byles v. Colier, 54 Id. 1.
There is nothing in this contract that rebuts this presumption. As in Lingham v. Eggleston, neither quantity nor quality of the lumber is determined: As in Jenkinson v. Monroe, 61 Mich. 454, the parties subsequently agreed upon an inspector, but it was agreed that the inspection should be had at the time of the shipment of the lumber.. In the Jenkinson case the contract was for all the lumber to be cut from a given lot of logs; defendant was to pay for freighting the logs to the mill, and was also to pay the saw bill, and was to direct as to how the lumber should be cut. The terms of the eon-*575tract itself tended to negative the presumption that the title was to remain in the vendor after the logs had been cut in accordance with the directions of defendant, it had paid freight and saw bill, and the lumber had been “ delivered upon the dock.”
In the present case there is nothing in the contract itself which necessarily indicates that the plaintiff intended that the title to either logs or lumber should pass until quantity and quality should be determined. Under it something remained to be done by the vendor, as no inspection had been provided for. It is true that the lumber when manufactured rjmulci be in possession of defendants, but the title to the logs was clearly in plaint, iff, and it cannot be insisted that the title to each board passed as it came from the saw, or that the act of defendants, in the absence of some indication of such intent on the part of plaintiff, should pass the title. Standing upon the contract alone, defendants would be entitled to a verdict.
• A different intent can only be gathered, if at all, from a consideration of the contract in the light of the acts done after its execution; but all that was done should be considered. Here there was more than the mere naked appointment of an inspector. If it was true that, after the defendants had commenced sawing, plaintiff went to defendants’ office, and had' the conversation related respecting the insurance of the lumber, and defendants did not insure this lumber in consequence, that conduct would seem to be conclusive as to how the parties themselves construed the contract; and the mere agreement upon an inspector, who, at the time of shipment, was to distinguish between the three grades of lumber, and fix the amount to be paid by defendants to plaintiff, would not disturb that construction. If, at that time, plaintiff put such a construction upon the *576contract, and defendants acquiesced in it, and in consequence defendants refrainéd from insuring the lumber,, plaintiff cannot now insist upon a different construction to defendants’ prejudice. One of the defendants’ witnesses who had testified to the conversation between plaintiff ánd defendant Hovey relative to the insurance, and that the conversation had been subsequently, and within two or three days, recalled, was asked, upon cross-examination, what the occasion was for recalling that, conversation, and replied:
“The occasion was this: I had to figure up the amount-of lumber on the dock, and keep track of the insurance, and we did not place any insurance on this lumber, and that was the reason why.”
The witness was then asked:
“Q. You expected, then, it was going to burn up?
“A. We expected if it did burn they would have to look after the insurance. That is the reason I did not keep track of it.”
Under these circumstances, including the conduct of the parties after the execution of the contract, the intent of the parties was a question of fact, which should have been submitted to the jury under proper instructions.
The judgment below is reversed, and a new trial ordered, with costs of this Court to defendants.
Morse, C. J., Long and Montgomery, JJ., concurred with McGrath, J.