Parker, P. J.:
It is conceded in this case that on June 18, 1892, when Borst made the contract with A. D. & M. S. Squires, he owned the logs known as the “ Peck, Haskell & Cobb Bros, stock ” from which the lumber therein mentioned was to be manufactured. It is also clear, and indeed conceded, that such contract is an executory one, and that wider it no title to such lumber passed from Borst to [260]*260any one, except so much thereof as was delivered “ on. Cars at Gene-see Forks.” .
■ Nor can it be claimed that the contract made on August 1,, 1892, between Squires and the .firm of “ Parldiurst, French. & Beard,” operated to pass the title to ■ the lumber' therein mentioned from Borst to any one. Borst was not a party, to that contract. Although A. D. & M. S. Squires thereby assumed to- sell and turn over all the stock at Borst’-s mill it is conceded that at that time they had no right to. it,, save such as they acquired under-their contract with Borst of Juné eighteenth. Such assumption on their part Could not affect Borst’s tide to -that stock; and Beard, who had ,-seen the contract of June eighteenth, must-have known it, 1
It is also clear that, unless- under some contract with Borst, the title to the lumber in question had: passed from Borst to either A. D. & M. S. Squii-Cs. or to the firm of Parldiurst, French •& Beard •before, it was taken by these defendants at the Borst mill on-November 28, 1892, .this plaintiff can have no action against them for the conversion of the same. It was then in the -actual possession of Borst, and if he then had the title thereto, this plaintiff has no right to complain that -Borst transferred such possession to the defendants.
The plaintiff, while it does not exactly claim that- the-, title to this lumber was -transferred from Borst by either -of the- written contracts above referred to, yet claims that, by an arrangement made at the mill on August 2, 1892, between Squires, Beard and Borst, such lumber was delivered to the firm of Párkhurst, French & Beardj and that the title thereupon vested in such firm.
Such arrangement, as stated by Beard and as found -by the referee, was substantially as follows : -Beard,- representing his said firm, and M. S. Squires- bn August second- Went to the Borst mill, and after Borst had been shown the contract between A. D. & 1VL S. Squires and Beard’s firm; made the day before, Beard asked Borst if he had any objections to delivering all the lumber and logs “ in pursuance or subject to ” such contract, and Bbrst said he had not. Thereupon Beard and Squires, assisted by Borst-, went through the yard and counted all the lumber therein which was- sawed and applicable to the. description in such contract; counted the amount thereof in each pile; numbered each pile and’ marked it as, follows: “.This lumber has been sold and delivered. . * * * to P., F,- & B,”;
[261]*261This is substantially all that occurred between the parties, .as claimed by the plaintiff, and the question arises, was it effectual in law to transfer the title and possession of the lumber so marked to the firm of Parkhurst, French & Beard %
There is no claim that any contract was then made between Borst and such firm. Ro obligation of any sort was then incurred from one to the other. ¡Notwithstanding the phrase used in marking the piles, there is no pretense that a contract of sale was then made between Borst and Beard. So far as purchasing the lumber was concerned, Beard dealt entirely witli Squires. His only purchase was under the written contract of August first. Ho abandonment of that was ever contemplated, and his firm at all times thereafter continued to act under it, and eventually performed it.
The referee finds that thereafter the lumber delivered by Borst on the cars was delivered according to their orders, and" that they paid for the sawing. . The evidence is that all such orders were given to A. D. & ¡M¡. S. Squires, and all such payments made to them.. Ro orders were ever given, nor payments ever made, from such firm to Borst. Thereafter, as theretofore, Borst continued to deliver the lumber upon the cars at Genesee Forks upon the orders, of Squires and in pursuance, of his contract of June 18, 1892, and if. the finding of the referee is to be given any different meaning or effect, it is not sustained by the evidence in the case.
It cannot, therefore, be considered that the “ delivery ” then spoken of was under any sale made by Borst to such firm, nor by reason of any contract on his part made with them, to ever transfer his title thereto to them.
Tlié plaintiff’s claim, however, seems to be that the sale was to A. D. & ¡M¡. S. Squires and the delivery was to Beard’s firm,, as their nominee.
But when was any such contract of sale and delivery made by Borst with A. D. & ¡M¡. S. Squires ? Certainly nothing occurred at the meeting above referred to, to evidence any such contract. It is clear beyond all controversy that there was never any purpose .to abandon the contract of June eighteenth, then existing between Borst and A. D. & M. S. Squires, and substitute another in its place. Borst was still under obligation to perform that contract in all its requirements. He must saw the lumber as therein provided [262]*262and deliver it on cars at Genesee Forks, and until lie did so lie had no claim whatever for the seven dollars and seventy-five cents per 1,000 feet, nor for any part thereof. There-is nowhere in that interview any language used or intimation given that A. I). & M.. S. Squires would accept such marking and. “ delivery ” as. a performance on Borst’s part of his contract with them. Plainly, it was not a delivery,-under the contract of June eighteenth,.nor intended .as such, and certainly no other contract of sale from Borst to A. D. & M. S. Squires was ever'made or1 contemplated. The only-contract, therefore, under which A. L>.‘ & M. S. Squires could ever have acquired the title to this lumber from Borst was that, of June eighteenth, and Borst’s obligation therein assumed, to deliver .all the lumber thereby sold upon the cars.at Genesee Forks, for the single price therein stated, was never modified nor released.
Now, whatever idea Squires and Beard may have had as to the effect of marking such piles and procuring Borst’s assent to .such a “ delivery,” it seems clear that it did not change the obligations nf either Borst or A. D. & M. S. Squires,-assumed by the contract of June eighteenth, and did not operate to change that contract from an executory to an executed one. So long, as Borst could demand the purchase price only upon his delivery of the lumber on. cars at Genesee Forks this sale was an executory one, and. the title to the lumber passed only as to that which he so delivered. Such, is plainly the rule in the State of Pennsylvania, as appears from the following authorities : Pritchett v. Jones (4 Rawle, 260)Sneathen v. Grubbs (88 Penn. St. 147); Nesbit v. Burry (25 id. 208); Mitchell v. Commonwealth (37 id. 187); Strong, Deemer & Co. v. Dinniny (175 id. 586); Dougherty v. Haggerty (96 id. 515). And it is the law of that State that must control this case, inasmuch, as the contracts and the alleged conversion occurred therein. And such, .also, seems to be the rule in this State. ' In the case of Terry v. Wheeler
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Parker, P. J.:
It is conceded in this case that on June 18, 1892, when Borst made the contract with A. D. & M. S. Squires, he owned the logs known as the “ Peck, Haskell & Cobb Bros, stock ” from which the lumber therein mentioned was to be manufactured. It is also clear, and indeed conceded, that such contract is an executory one, and that wider it no title to such lumber passed from Borst to [260]*260any one, except so much thereof as was delivered “ on. Cars at Gene-see Forks.” .
■ Nor can it be claimed that the contract made on August 1,, 1892, between Squires and the .firm of “ Parldiurst, French. & Beard,” operated to pass the title to ■ the lumber' therein mentioned from Borst to any one. Borst was not a party, to that contract. Although A. D. & M. S. Squires thereby assumed to- sell and turn over all the stock at Borst’-s mill it is conceded that at that time they had no right to. it,, save such as they acquired under-their contract with Borst of Juné eighteenth. Such assumption on their part Could not affect Borst’s tide to -that stock; and Beard, who had ,-seen the contract of June eighteenth, must-have known it, 1
It is also clear that, unless- under some contract with Borst, the title to the lumber in question had: passed from Borst to either A. D. & M. S. Squii-Cs. or to the firm of Parldiurst, French •& Beard •before, it was taken by these defendants at the Borst mill on-November 28, 1892, .this plaintiff can have no action against them for the conversion of the same. It was then in the -actual possession of Borst, and if he then had the title thereto, this plaintiff has no right to complain that -Borst transferred such possession to the defendants.
The plaintiff, while it does not exactly claim that- the-, title to this lumber was -transferred from Borst by either -of the- written contracts above referred to, yet claims that, by an arrangement made at the mill on August 2, 1892, between Squires, Beard and Borst, such lumber was delivered to the firm of Párkhurst, French & Beardj and that the title thereupon vested in such firm.
Such arrangement, as stated by Beard and as found -by the referee, was substantially as follows : -Beard,- representing his said firm, and M. S. Squires- bn August second- Went to the Borst mill, and after Borst had been shown the contract between A. D. & 1VL S. Squires and Beard’s firm; made the day before, Beard asked Borst if he had any objections to delivering all the lumber and logs “ in pursuance or subject to ” such contract, and Bbrst said he had not. Thereupon Beard and Squires, assisted by Borst-, went through the yard and counted all the lumber therein which was- sawed and applicable to the. description in such contract; counted the amount thereof in each pile; numbered each pile and’ marked it as, follows: “.This lumber has been sold and delivered. . * * * to P., F,- & B,”;
[261]*261This is substantially all that occurred between the parties, .as claimed by the plaintiff, and the question arises, was it effectual in law to transfer the title and possession of the lumber so marked to the firm of Parkhurst, French & Beard %
There is no claim that any contract was then made between Borst and such firm. Ro obligation of any sort was then incurred from one to the other. ¡Notwithstanding the phrase used in marking the piles, there is no pretense that a contract of sale was then made between Borst and Beard. So far as purchasing the lumber was concerned, Beard dealt entirely witli Squires. His only purchase was under the written contract of August first. Ho abandonment of that was ever contemplated, and his firm at all times thereafter continued to act under it, and eventually performed it.
The referee finds that thereafter the lumber delivered by Borst on the cars was delivered according to their orders, and" that they paid for the sawing. . The evidence is that all such orders were given to A. D. & ¡M¡. S. Squires, and all such payments made to them.. Ro orders were ever given, nor payments ever made, from such firm to Borst. Thereafter, as theretofore, Borst continued to deliver the lumber upon the cars at Genesee Forks upon the orders, of Squires and in pursuance, of his contract of June 18, 1892, and if. the finding of the referee is to be given any different meaning or effect, it is not sustained by the evidence in the case.
It cannot, therefore, be considered that the “ delivery ” then spoken of was under any sale made by Borst to such firm, nor by reason of any contract on his part made with them, to ever transfer his title thereto to them.
Tlié plaintiff’s claim, however, seems to be that the sale was to A. D. & ¡M¡. S. Squires and the delivery was to Beard’s firm,, as their nominee.
But when was any such contract of sale and delivery made by Borst with A. D. & ¡M¡. S. Squires ? Certainly nothing occurred at the meeting above referred to, to evidence any such contract. It is clear beyond all controversy that there was never any purpose .to abandon the contract of June eighteenth, then existing between Borst and A. D. & M. S. Squires, and substitute another in its place. Borst was still under obligation to perform that contract in all its requirements. He must saw the lumber as therein provided [262]*262and deliver it on cars at Genesee Forks, and until lie did so lie had no claim whatever for the seven dollars and seventy-five cents per 1,000 feet, nor for any part thereof. There-is nowhere in that interview any language used or intimation given that A. I). & M.. S. Squires would accept such marking and. “ delivery ” as. a performance on Borst’s part of his contract with them. Plainly, it was not a delivery,-under the contract of June eighteenth,.nor intended .as such, and certainly no other contract of sale from Borst to A. D. & M. S. Squires was ever'made or1 contemplated. The only-contract, therefore, under which A. L>.‘ & M. S. Squires could ever have acquired the title to this lumber from Borst was that, of June eighteenth, and Borst’s obligation therein assumed, to deliver .all the lumber thereby sold upon the cars.at Genesee Forks, for the single price therein stated, was never modified nor released.
Now, whatever idea Squires and Beard may have had as to the effect of marking such piles and procuring Borst’s assent to .such a “ delivery,” it seems clear that it did not change the obligations nf either Borst or A. D. & M. S. Squires,-assumed by the contract of June eighteenth, and did not operate to change that contract from an executory to an executed one. So long, as Borst could demand the purchase price only upon his delivery of the lumber on. cars at Genesee Forks this sale was an executory one, and. the title to the lumber passed only as to that which he so delivered. Such, is plainly the rule in the State of Pennsylvania, as appears from the following authorities : Pritchett v. Jones (4 Rawle, 260)Sneathen v. Grubbs (88 Penn. St. 147); Nesbit v. Burry (25 id. 208); Mitchell v. Commonwealth (37 id. 187); Strong, Deemer & Co. v. Dinniny (175 id. 586); Dougherty v. Haggerty (96 id. 515). And it is the law of that State that must control this case, inasmuch, as the contracts and the alleged conversion occurred therein. And such, .also, seems to be the rule in this State. ' In the case of Terry v. Wheeler (25 N. Y. 520), to which we are referred by plaintiff’s counsel as an authority in his favor, it is said at page 525 : “ If the payment was to be made on or after delivery at a particular place, it might fairly be inferred that the contract was executory until such delivery.” (See, also, Anderson v. Read, 106 N. Y. 333.)
■ The-setting apart and marking.such piles might operate as. a-suffieient “appropriation” and delivery of the same,, if it were done [263]*263under a contract of sale that permitted a delivery On the yard and required nothing more to be done than that the lumber sold should be identified ; but the difficulty is that no such contract ever existed between Borst and A. I). & ]VI. S. Squires. The only contract existing between them, viz., that of June eighteenth, required a very different delivery; and never having been abandoned or modified, the so-called “ delivery ” by marking the piles was entirely inoperative to pass the title from Borst.
I conclude that, upon the plaintiff’s own showing, Borst has never made any contract, or delivery, under or by which his ownership of the logs, or lumber, at the mill had passed from him prior to his transfer of the same to these defendants on November twenty-sixth.
For this reason, their taking possession of such lumber under, such sale was not a conversion thereof. Borst may be liable to A. D. & M. S. Squires for a breach of his contract, and A. D. & M. S. Squires may be liable to Parkhurst, French & Beard for a breach of their contract, but no conversion of the lumber has been shown. Neither ever owned the lumber, for the conversion of which the plaintiff has recovered, and, therefore, this judgment must be reversed and a new trial granted.
Moreover, we are not entirely satisfied that Borst ever agreed to the delivery of the lumber at the mill, as claimed by the plaintiff, and as is found by the referee. Borst, himself, denies that he ever so agreed, and there is the direct and positive evidence of several witnesses to the effect that he, Borst, distinctly stated that the lumber must remain his until it was on the cars and paid for, and that when the money stopped the lumber would stop. The weight of evidence seems to be that, while Borst did not object to Beard and Squires doing anything that they desired to do concerning the lumber, as between themselves, yet he never agreed to part with his own possession or interest in it, except through and in accordance with his contract of June eighteenth. Inasmuch as we are not willing to affirm, the finding of the referee on that question, we reverse the judgment on both the law and the facts.
All concurred.
Judgment reversed on the law and facts, referee discharged and new trial granted, with costs to appellants to abide event.