Nesmith, J.
It is very difficult to lay down any general rule that can bind or control parties, in cases like this before us. The defendant contends that the sale of the [252] lumber in dispute from Clark to the plaintiff was incomplete ; therefore no title to it passed which can affect the rights of Clark’s creditors. In a recent case of this kind, Gilmour v. Supple, Amer. Law Reg. 1859, 245, Justice Creswell remarks : “ It is impossible to examine the decisions on this subject, without being struck with the ingenuity with which sellers have contended that the property in goods contracted for had or had not become vested in the buyers, according as it suited their interest; and buyers and their representatives have with equal ingenuity endeavored to show that they had or had not acquired the property in that for which they had contracted ; and judges have not unnaturally appeared anxious to find reasons for giving a judgment which seemed to them most consistent to natural justice.” Under such circumstances, it cannot occasion much surprise, if some of the numerous reported decisions have been made to depend upon very nice and subtle distinctions, and if some of them should not appear altogether reconcilable with others. We find no better defined rule for this ease than Chancellor Kent’s. (2 Com. 504.) “ The good sense of the docti’ine on this subject would seem to be that, in order to satisfy the statute of frauds, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and an actual acceptance by the vendee, with the intention of taking possession as owner.” What was the actual agreement of the parties, their intention in accepting and delivering the lumber, was the true issue between them, and was properly submitted to the jury for their inquiry and decision. Delivery is only evidence of a sale. When a sale is bond fide, and for a valuable consideration, slight evidence of a delivery is sufficient to change the property. But there must not only be an act, but an act intended for that purpose. Where the article is selected and set apart, with the assent of parties, as the thing purchased, [253] a title passes. Hill, on Sales 88. It is a question of fact for the jury whether there has been a delivery by the seller, and an acceptance by the buyer, intended by both parties to have the effect of transferring the right from one to the other. Phillips v. Bertolli, 2 B. & Cr. 511; Marlow v. Maples, 1 Taunt. 141; Chaplin v. Rogers, 1 East 192. Whether a contract of sale has been completed is a question for the jury. The court will not order a non-suit for want of full proof of the contract. De Ridder v. M’Knight, 13 Johns. 294. Delivery is held to raise a presumption of a complete sale, and the effect of the circumstance that the property is to be weighed, measured, &c., upon the question of intent, is for the jury. Cunningham v. Ashbrook, 20 Miss. 553; quoted with approbation in Hill, on Sales 147. So, in ease of an entire contract to deliver a number of articles at a certain time and place, the vendee is not bound to receive a part of them only, nor to pay for a part, though delivered; but, if he accept a part, this is a disaffirmance of the entirety of the contract, and he is bound to pay for such part; and these are proper facts to be found by the jury. Hill, on Sales 109, 110; Waldron v. Chase, 37 Me. 414; Davis v. Moore, 1 Shepl. 424. Where a bill of sale, and a receipt of payment, were given for a quantity of shooks not then manufactured, aiid a part only subsequently delivered, whether such delivery of part operates as a delivery of the whole depends on the intention of the parties, which is a question for the jury. Pratt v. Chase, 40 Me. 269; Bates v. Conkling, 10 Wend. 384.
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Nesmith, J.
It is very difficult to lay down any general rule that can bind or control parties, in cases like this before us. The defendant contends that the sale of the [252] lumber in dispute from Clark to the plaintiff was incomplete ; therefore no title to it passed which can affect the rights of Clark’s creditors. In a recent case of this kind, Gilmour v. Supple, Amer. Law Reg. 1859, 245, Justice Creswell remarks : “ It is impossible to examine the decisions on this subject, without being struck with the ingenuity with which sellers have contended that the property in goods contracted for had or had not become vested in the buyers, according as it suited their interest; and buyers and their representatives have with equal ingenuity endeavored to show that they had or had not acquired the property in that for which they had contracted ; and judges have not unnaturally appeared anxious to find reasons for giving a judgment which seemed to them most consistent to natural justice.” Under such circumstances, it cannot occasion much surprise, if some of the numerous reported decisions have been made to depend upon very nice and subtle distinctions, and if some of them should not appear altogether reconcilable with others. We find no better defined rule for this ease than Chancellor Kent’s. (2 Com. 504.) “ The good sense of the docti’ine on this subject would seem to be that, in order to satisfy the statute of frauds, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and an actual acceptance by the vendee, with the intention of taking possession as owner.” What was the actual agreement of the parties, their intention in accepting and delivering the lumber, was the true issue between them, and was properly submitted to the jury for their inquiry and decision. Delivery is only evidence of a sale. When a sale is bond fide, and for a valuable consideration, slight evidence of a delivery is sufficient to change the property. But there must not only be an act, but an act intended for that purpose. Where the article is selected and set apart, with the assent of parties, as the thing purchased, [253] a title passes. Hill, on Sales 88. It is a question of fact for the jury whether there has been a delivery by the seller, and an acceptance by the buyer, intended by both parties to have the effect of transferring the right from one to the other. Phillips v. Bertolli, 2 B. & Cr. 511; Marlow v. Maples, 1 Taunt. 141; Chaplin v. Rogers, 1 East 192. Whether a contract of sale has been completed is a question for the jury. The court will not order a non-suit for want of full proof of the contract. De Ridder v. M’Knight, 13 Johns. 294. Delivery is held to raise a presumption of a complete sale, and the effect of the circumstance that the property is to be weighed, measured, &c., upon the question of intent, is for the jury. Cunningham v. Ashbrook, 20 Miss. 553; quoted with approbation in Hill, on Sales 147. So, in ease of an entire contract to deliver a number of articles at a certain time and place, the vendee is not bound to receive a part of them only, nor to pay for a part, though delivered; but, if he accept a part, this is a disaffirmance of the entirety of the contract, and he is bound to pay for such part; and these are proper facts to be found by the jury. Hill, on Sales 109, 110; Waldron v. Chase, 37 Me. 414; Davis v. Moore, 1 Shepl. 424. Where a bill of sale, and a receipt of payment, were given for a quantity of shooks not then manufactured, aiid a part only subsequently delivered, whether such delivery of part operates as a delivery of the whole depends on the intention of the parties, which is a question for the jury. Pratt v. Chase, 40 Me. 269; Bates v. Conkling, 10 Wend. 384.
In the case before us, Xelsea and Clark were the contracting parties. Their testimony went strongly to show that a full delivery of the lumber was intended ; that Clark gave up all control to the plaintiff; that the plaintiff expressed himself satisfied with the quality of lumber delivered, told Clark.it was good, and that he would take it. The plaintiff helped to unload a number of the loads, [254] and upon Ms own land piled portions of it ove?, measuring some of it; used some of it for bis fence, and covering for bis shingles. Clark told tbe plaintiff to use tbe timber, as be bauled it. Tbe plaintiff bad originally agreed to receive tbis lumber in part payment of labor previously rendered by bimself and' brother. Tbe plaintiff' bad tbe right to waive tbe entirety of bis contract, and accept of a less quantity of lumber than be bad originally contracted for, and the law would bind him to pay for what be actually accepted. , It was competent for tbe jury, weighing all tbe facts and circumstances of tbe case, to find a waiver on- tbe part of tbe plaintiff, and a sale of tbe lumber delivered to him, and a binding acceptance by him, according to tbe actual intent of tbe parties. But it is suggested that no sale could be perfected here, as tbe price had not been agreed on. Tbe answer is that Kelsea bad paid for more than be actually received, and tbe case finds be was to have th e lumber at the “ going price. ’ ’ Tbis, of course, would be tbe market value of tbe same at tbe place and time of delivery. Tbe law, therefore, regulates tbis part of tbe case, establishing tbe market price as tbe governing price. Tbe defendant objects, also, that tbe lumber was not measured before it was attached, and that here was an act remaining to be done which rendered tbe contract incomplete and invalid. "Where it becomes necessary, in order to determine tbe price of goods, to weigh, measure or count them, tbe rule has been held to apply only where there has been a mere constructive delivery and possession, not where there has been an actual possession. Thus, where a quantity of goods, agreed to be sold, is delivered, tbe sale is complete, though they are still to be counted, weighed or measured, in order to determine tbe sum to be paid for them. Tbe act of delivery shows that it is intended thereby to complete tbe sale.- Tbe measuring constitutes no part of tbe contract of sale, but is merely incidental to it. Hill, on Sales 145; [255] Everett v. Tindal, 5 Esp. 169 ; Sumner v. Hamlet, 12 Pick. 82. This principle was applied to a case where the seller was part owner of a large quantity of bricks, and where he sold his undivided share in the whole. Macomber v. Parker, 13 Pick. 175. So to a contract to sell all the corn in a certain mill-house at $2.50 per barrel, a payment of part of the money vests the property in the purchaser, so that he can maintain trover for it, even though it was not measured out to him. Morgan v. Perkins, 1 Jones’ Legal Ins. 171. The principle applies where payment is not a condition precedent, and where the intention of the parties is that the sale should be complete. Riddle v. Varnum, 20 Pick. 280; Gilmour v. Supple, Law Peg. 259. So, where the process of ascertaining the quantity has been substantially performed, the title passes, although a trifling act remains to be done, in order to complete the enumeration, especially if the vendee is in possession, and the remaining act is to be done by him. Hill. on Sales 148; Tansley v. Turner, 2 Scott 238 ; Tyler v. Strang, 21 Barb. ; Oli-phant v. Baker, 5 Den. 379 ; Shepherd v. Pressey, 32 N. H. 50 ; Gilman v. Hill, 36 N. H. 311.
"We are, therefore, of the opinion that the facts of this case justify the verdict of the jury, and that the law, as laid down by the judge who tried the cause, was sufficiently favorable to the defendant. There must, therefore, be
Judgment on the verdict.