Barrows, J.
The plaintiffs had a contract with one Meserve, for the purchase of from two million to two million five hundred thousand feet of spruce logs, which, according to the contract, Meserve was to deliver in the Androscoggin River, below Errol dam, as soon as the ice was out of the river in the spring of 1866. The logs were all to be distinctly marked with the plaintiffs’ mark on each end, with an axe, and “to be scaled by Isaac Lunt, of Oldtown, and settled according to his survey.”
By the same contract the plaintiffs agreed to pay Meserve “$6 per M feet, one-half as cash, May 1, the other half as cash, Nov. 1, 1866, and to make advances from time to time, as the logs are put into the river, as hereinbefore mentioned,” interest to be reckoned on the advance payments so made, and four per cent additional on the fulfillment of the contract on Meserve’s part, which last-named sum was declared to be in consideration of accepting payments on time for half the logs, and for putting in one-half the amount of the contract full length.
Meserve exhibited the contract to Standley & Evans, who had bought standing timber on the Chickawalapy, — a tributary of the Androscoggin, — and they agreed to become jointly interested in the contract with him, and to turn in their logs in frilfillment of the contract, at the same price that he was to receive, and get them into the Androscoggin in season to go on with the rest of the chive. They cut and landed at one place on the bank of the Chickawalapy, and on the ice in the 'stream, 605 M, according to the scale and survey furnished them by Lunt, the surveyor named in the contract, who came from time to time to the landing-place on the Chickawalapy, to survey them. He was employed by the plaintiffs, and it was part of his duty to see that the plaintiffs’ mark was put [17]*17upon tlie logs. The plaintiffs’ mark was put upon each log there landed, as stipulated in the contract, and the plaintiffs made advance payments from time to time, as agreed upon. It so happened that 238 M feet of the logs so landed and marked, on the Chickawalapy, did not get out of that stream in the spring of 1866, in season to go into the drive.
In May of that year, when Meserve first went to settle with the plaintiffs’ agent, the logs on the Chickawalapy had not keen started out, and the plaintiffs’ agent declined to settle “until the drive had taken in all the landings.”
In June, 1866, Meserve came again to settle, bringing with him a letter from Lunt to the plaintiffs’ agent, in which Lunt states that he liad “ got the logs all in the drive, except about 100 M on the Walipy.”
Thereupon a settlement took place, in which all the logs, including the 605 M landed by Evans & Standley, on the Chickawalapy, and amounting to about two million two hundred thousand feet, are charged to the plaintiffs, witli the contract price carried out — “less 100,000 left in Chickawalapy.”
In August, 1866, Evans sold the 233 M, which were actually “left in the Chickawalapy,” to the defendants, who were notified by the plaintiffs’ agent, before they paid Evans for the logs, that the plaintiffs claimed them as their property, and should hold the defendants responsible. The defendants took them notwithstanding this notice; and hence this suit, which must turn upon the question whether the plaintiffs owned the logs which were “left in the Chickawalapy.”
The position taken by the defendants is that the contract remained executory until delivery in the Androscoggin River, below Errol dam, the place named in the contract as the place of delivery and that the property in the logs did not pass from the vendors to the plaintiffs for want of a delivery.
To determine whether this property had passed to the plaintiffs, it is necessary to consider not merely tlie stipulations in the contract itself, but the subject-matter of it, and the attendant circum[18]*18stances also: e. g. the situation of the merchandise contracted for, and the usual course of the trade in it, and the subsequent particular acts and dealings of the parties to the alleged sale in relation to it.
The question of transfer to and vesting of title in the purchaser, always involves a question of the intention of the contracting parties ; and it is to be ascertained whether their negotiations and acts are evincive of an intention on the part of the seller to relinquish all further claim or control as owner, and on the part of the buyer to assume such control with its consequent liabilities.
The question is one by no means free from difficulty where, as here, there are acts and stipulations of the parties looking each way.
In general, however, it may be well to premise, the law regulating the delivery of property upon a sale accommodates itself to the necessities of the business and the nature of^ the property, making a symbolical delivery sufficient, where nothing but a constructive possession can ordinarily be had, and by no means overlooking the possibility that the merchandise sold may remain in possession of the seller for certain specific purposes, among which are transportation and delivery at another place, where the property in it has actually passed from him, and vested in the purchaser, without affecting the validity of the sale. Boynton v. Veazie, 24 Maine, 286. Terry v. Wheeler, 25 N. Y. (11 Smith), 520. The fact that the logs had not arrived at the point ha the river where, by the contract, Meserve had uiadertaken to deliver them, caanaot of itself be deemed conclusive that the property in the logs had aaot passed to the plaintiffs. Doubtless it is evideaace strongly tendiaag to that coaaclusion, and unless counteracted by the evidence of the other acts and doings of the parties to the trade, aaad of the usual course of business among dealers ha logs, would be fatal to the plaintiffs’ claim.
' It is strongly aa’gued that the plaintiffs were not bound to receive any logs that were aaot boomed ha the Androscoggha River below Eanol dam, as sooaa as the ice was out of the river, in the spring of. 1866, and that these logs, not behag so situated, canaaot be looked upon as going hato the fulfillment of the coaatract.
[19]*19Looking witli not a little force to the same result is the fact, that though the whole 605 M of the logs in the Chickawalapy were charged to the plaintiffs in the statement of the account, on settlement, a deduction was made of the whole contract price for 100 M, supposed to be the quantity left back. These are the circumstances which make most strongly against the plaintiffs’ title.
If we could accept as true, Meserve’s testimony as to what transpired between himself and the plaintiffs’ agent, at the time of the adjustment, we should be disposed to hold that the property in the logs in controversy was not intended to pass and did not pass.
But we cannot overlook the fact that Meserve and Evans both must have known, when Evans made the sale of tile 233 M feet of logs to the defendants, that they had already received their pay for 133 M of them from the plaintiffs, and we think that the position in which they stand in this particular, tends strongly to discredit their statements as witnesses.
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Barrows, J.
The plaintiffs had a contract with one Meserve, for the purchase of from two million to two million five hundred thousand feet of spruce logs, which, according to the contract, Meserve was to deliver in the Androscoggin River, below Errol dam, as soon as the ice was out of the river in the spring of 1866. The logs were all to be distinctly marked with the plaintiffs’ mark on each end, with an axe, and “to be scaled by Isaac Lunt, of Oldtown, and settled according to his survey.”
By the same contract the plaintiffs agreed to pay Meserve “$6 per M feet, one-half as cash, May 1, the other half as cash, Nov. 1, 1866, and to make advances from time to time, as the logs are put into the river, as hereinbefore mentioned,” interest to be reckoned on the advance payments so made, and four per cent additional on the fulfillment of the contract on Meserve’s part, which last-named sum was declared to be in consideration of accepting payments on time for half the logs, and for putting in one-half the amount of the contract full length.
Meserve exhibited the contract to Standley & Evans, who had bought standing timber on the Chickawalapy, — a tributary of the Androscoggin, — and they agreed to become jointly interested in the contract with him, and to turn in their logs in frilfillment of the contract, at the same price that he was to receive, and get them into the Androscoggin in season to go on with the rest of the chive. They cut and landed at one place on the bank of the Chickawalapy, and on the ice in the 'stream, 605 M, according to the scale and survey furnished them by Lunt, the surveyor named in the contract, who came from time to time to the landing-place on the Chickawalapy, to survey them. He was employed by the plaintiffs, and it was part of his duty to see that the plaintiffs’ mark was put [17]*17upon tlie logs. The plaintiffs’ mark was put upon each log there landed, as stipulated in the contract, and the plaintiffs made advance payments from time to time, as agreed upon. It so happened that 238 M feet of the logs so landed and marked, on the Chickawalapy, did not get out of that stream in the spring of 1866, in season to go into the drive.
In May of that year, when Meserve first went to settle with the plaintiffs’ agent, the logs on the Chickawalapy had not keen started out, and the plaintiffs’ agent declined to settle “until the drive had taken in all the landings.”
In June, 1866, Meserve came again to settle, bringing with him a letter from Lunt to the plaintiffs’ agent, in which Lunt states that he liad “ got the logs all in the drive, except about 100 M on the Walipy.”
Thereupon a settlement took place, in which all the logs, including the 605 M landed by Evans & Standley, on the Chickawalapy, and amounting to about two million two hundred thousand feet, are charged to the plaintiffs, witli the contract price carried out — “less 100,000 left in Chickawalapy.”
In August, 1866, Evans sold the 233 M, which were actually “left in the Chickawalapy,” to the defendants, who were notified by the plaintiffs’ agent, before they paid Evans for the logs, that the plaintiffs claimed them as their property, and should hold the defendants responsible. The defendants took them notwithstanding this notice; and hence this suit, which must turn upon the question whether the plaintiffs owned the logs which were “left in the Chickawalapy.”
The position taken by the defendants is that the contract remained executory until delivery in the Androscoggin River, below Errol dam, the place named in the contract as the place of delivery and that the property in the logs did not pass from the vendors to the plaintiffs for want of a delivery.
To determine whether this property had passed to the plaintiffs, it is necessary to consider not merely tlie stipulations in the contract itself, but the subject-matter of it, and the attendant circum[18]*18stances also: e. g. the situation of the merchandise contracted for, and the usual course of the trade in it, and the subsequent particular acts and dealings of the parties to the alleged sale in relation to it.
The question of transfer to and vesting of title in the purchaser, always involves a question of the intention of the contracting parties ; and it is to be ascertained whether their negotiations and acts are evincive of an intention on the part of the seller to relinquish all further claim or control as owner, and on the part of the buyer to assume such control with its consequent liabilities.
The question is one by no means free from difficulty where, as here, there are acts and stipulations of the parties looking each way.
In general, however, it may be well to premise, the law regulating the delivery of property upon a sale accommodates itself to the necessities of the business and the nature of^ the property, making a symbolical delivery sufficient, where nothing but a constructive possession can ordinarily be had, and by no means overlooking the possibility that the merchandise sold may remain in possession of the seller for certain specific purposes, among which are transportation and delivery at another place, where the property in it has actually passed from him, and vested in the purchaser, without affecting the validity of the sale. Boynton v. Veazie, 24 Maine, 286. Terry v. Wheeler, 25 N. Y. (11 Smith), 520. The fact that the logs had not arrived at the point ha the river where, by the contract, Meserve had uiadertaken to deliver them, caanaot of itself be deemed conclusive that the property in the logs had aaot passed to the plaintiffs. Doubtless it is evideaace strongly tendiaag to that coaaclusion, and unless counteracted by the evidence of the other acts and doings of the parties to the trade, aaad of the usual course of business among dealers ha logs, would be fatal to the plaintiffs’ claim.
' It is strongly aa’gued that the plaintiffs were not bound to receive any logs that were aaot boomed ha the Androscoggha River below Eanol dam, as sooaa as the ice was out of the river, in the spring of. 1866, and that these logs, not behag so situated, canaaot be looked upon as going hato the fulfillment of the coaatract.
[19]*19Looking witli not a little force to the same result is the fact, that though the whole 605 M of the logs in the Chickawalapy were charged to the plaintiffs in the statement of the account, on settlement, a deduction was made of the whole contract price for 100 M, supposed to be the quantity left back. These are the circumstances which make most strongly against the plaintiffs’ title.
If we could accept as true, Meserve’s testimony as to what transpired between himself and the plaintiffs’ agent, at the time of the adjustment, we should be disposed to hold that the property in the logs in controversy was not intended to pass and did not pass.
But we cannot overlook the fact that Meserve and Evans both must have known, when Evans made the sale of tile 233 M feet of logs to the defendants, that they had already received their pay for 133 M of them from the plaintiffs, and we think that the position in which they stand in this particular, tends strongly to discredit their statements as witnesses.
The testimony of the plaintiffs’ agent (which we accept as more likely to be true than Meserve’s version of this part of the transaction) is: “I told him the logs were ours; that if they came out the next spring, they probably would not be injured any, but if they lay there two or three years they would injure a great deal, and probably be very nearly spoiled; 1 told him there -would have to be a large reduction made on the logs if they lay back two or three years.”
Here is no disclaimer of title to the logs that were left back, or of liability to pay for them at the contract price; but it is rather to be construed as a reminder to Meserve that damages would be claimed of him in offset, if there should be a long delay in the fulfillment of his stipulation to have them below Errol dam.
Let us now see what there is which goes to show that it was the intention of these parties that the property should pass, and that it did pass to the plaintiffs, before arriving at the point in the river where the vendor undertook to place it.
We have no doubt that Standley & Evans, by their arrangement with Meserve, and the consequent turning in of these logs to make [20]*20up the amount called for by the contract, stood in such a relation to the plaintiffs, that the property in these logs passed to the plaintiffs, if any of Meserve’s logs, similarly situated, would have passed. Whether they became partners with Meserve or not (a point we deem it unnecessary to decide), it is clear that they gave him ample authority to dispose of these logs, according to the terms of his contract with the plaintiffs, an authority which could not be revoked, if in pursuance of it the title to the logs had already vested in the plaintiffs. An important stipulation, in its effect upon this question of when the property passed, is the one which declares that the logs are to be settled for according to Lunt’s survey. That survey was made as the work of filling the contract progressed, from time to time, at the landings where the logs were delivered, with the knowledge of all parties, and it includes the logs in controversy. It was according to that survey that the plaintiffs were bound to pay. The logs were to be marked as the plaintiffs might direct, and the testimony is that each of the logs in controversy had the Bethel Steam Mill Company’s mark placed upon it at the landing. We cannot believe that the parties thus contracting and proceeding, could have had any other intention or understanding than that the property should pass, and be considered as delivered when the marking and survey were completed; and it would seem that if the delivery below Errol dam, in the Androscoggin River, constituted a condition precedent in the contract, it was waived and delivery accepted at the landings, where the survey and marking took place, with the understanding that Meserve would still fulfill his agreement to run them down to the point designated, as a condition subsequent.
A symbolical delivery of property thus situated was sufficient. It was only a constructive possession that could be expected to be taken. Lunt, though mutually agreed upon as the surveyor, was in the employ of the plaintiffs, and it was made Ids business specially to see to it that all the landings were turned into the river. He was clearly the agent of the plaintiffs for this purpose, and the act constituted as perfect a delivery as the nature and situation of the [21]*21property would permit. Wo think that the survey and marking of the logs in controversy, when they were so placed as to be liable to be mixed with other logs bearing the plaintiffs’ mark, must be held to be a sufficient delivery.
How otherwise could there be any security for the seller, or any possibility of ascertaining what he was entitled to receive ? How otherwise could effect be given to the stipulation for a settlement according to the survey ? The rough estimate by Lunt of “ about 100 M left back,” was plainly no part of the survey. It might serve for a basis upon which to regulate the advance payments, and in conformity with it notes were given in June, covering more than half the amount of the logs in controversy, while apparently the payment for the balance was left unadjusted, until it could be ascertained how much damage the plaintiffs might suffer and be entitled to recoup by the failure of Meserve to bring them into the spring drive.
In fine, when we look at the nature of the business, and the manner in which it must necessarily be conducted, we see no safety for parties engaged in it from perpetual controversies, in which it would be very nearly impossible to arrive at any satisfactory conclusion, if we do not hold that, in the absence of the clearest evidence to the contrary, the making of a survey which is to be conclusive on the parties, and the affixing of the purchaser’s mark to all the logs, when they are once put afloat, so as to be liable to be mixed with others bearing the same mark, is to be deemed a sufficient delivery to vest the property in the purchaser.
We think this must be our conclusion, independent of the evidence of custom offered in the case, — a custom eminently reasonable and proper, if not indispensable in the carrying on of the business.
For reasons similar to those above suggested, it would seem, it was held in Walden v. Murdock, 23 Cal., 540, that a sale of cattle roaming over uninclosed plains with those of other owners, if made in good faith, is not invalid as against creditors of the vendor, for want of delivery, until the purchaser has had a reasonable time to separate and brand them; and that branding the cattle by the pur[22]*22chaser is a good delivery to him, though he allows them afterwards to remain in the same uninclosed range of pastime.
In the view which we take of this case, the fact that the logs were still in the possession of the vendors, for the purpose of being driven to a point lower down on- the river than the place where the survey and marking took place, cannot avail the defendants.
If merchandise sold remains in the possession of the vendor for a specific purpose, as part of the consideration, the sale being otherwise complete, the possession of the vendor is to be considered the possession of the vendee, and the delivery as sufficient to pass the title even against subsequent purchasers. Hotchkiss v. Hunt, 49 Maine, 213. Judgment for plaintiffs, for $175933.
Appleton, C. J., Cutting, Walton, Dickerson, and Dan-forth, JJ., concurred.