ANDERSON, J.
“After the formation of the contract of sale, the question of its effect arises as to- when the bargain amounts to an actual sale or when it is a mere executory agreement. The distinction between the two contracts consists in this: That in a bargain and sale the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the seller; whereas, in an executory agreement, the goods remain the property of the seller till the contract is executed. This distinction is of importance in two connections: First, as between the parties to the contract, in order to determine upon whom the loss shall fall in case the property is destroyed, for it is plain that, if the subject of the sale is lost or destroyed, the loss- must fall upon the party who holds the title; thus, if before the transfer has taken [511]*511place a loss accrues, it falls upon the seller, otherwise upon the buyer. And, second, in order to know what right creditors or subsequent purchasers of one party may acquire as against the other. An executory contract of sale becomes executed upon delivery and acceptance of the goods in accordance with the contract with intent to pass title.” — 24 Am. & Eng. Ency. Law, 1045.
“Mr. Benjamin, in his work on Sales, in discussing executory or conditional sales of chattels, in section 320, says: ‘Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer..’ The foregoing is in harmony Avith the rulings of our oavu court. —3 ^Brickell’s Digest, 732, § 9, and cases there cited. These cases must be limited, hoAvever, to contracts wherein it does not appear that an intention to make the sale absolute and complete, Avithout any regard to the performance of these usual prerequisites, at least as to price and measurement. — Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43.” Wheeler v. Cleveland, et al., 170 Ala. 432-433, 54 South. 277, 278.
“Where the rule exists that the property presumably does not pas's if something remains to be done to ascertain the price, the rule is everyAvhere merely one of presumption which Avill yield to evidence showing an intent to transfer the property immediately. The most noticeable circumstance tending to show an intent to transfer the oAvnership is delivery of the goods to the buyer. It has already been observed that, even though something remains to be done to put the goods in a deliverable condition, actual delivery of the goods would [512]*512indicate, in the absence of express retention of ownership, an intent to transfer it immediately. This is still more clearly true where nothing remains to be done but weighing or measuring to fix the price.” — Williston on Sales, § 269; Mechen on Sales, 515; Francis-Chenoweth Hardware Co. v. Gray, 104 Ala. 236, 15 South. 911,. 53 Am. St. Rep. 37.
In determining whether the parties to the contract, for the sale of personal property intended that title should pass so as to complete the sale, the actual delivery of the goods is of the greatest importance; and if there be accompanying declarations, showing an intention that the property should pass to the vendee immediately, and not at some future time, the fact of delivery, as evidence of intention, becomes manifestly the most cogent of all legal proofs, when the good faith of the transaction is not impugned. — Shealey v. Edwards, 73 Ala. 175, 49 Am. Rep. 43.
In the case at bar there was no actual delivery of the cotton, but a constructive delivery by depositing the receipts with the bank upon the receipt of the check for $30,000, which was not the entire purchase price, but which, according to all the evidence, was either a loan, advance, or partial payment. So the question arises: Was the delivery of the cotton receipts an unqualified one and with the intention of passing the title to the cotton into Knight, Yancey & Co., or was it a qualified delivery and intended merely to protect Knight, Yancey & Co. and the bank as security for the $30,000 so advanced or loaned? In other words, did the parties intend that the delivery was unconditional and was made for the purpose of passing the title to the cotton, or that the receipts were merely placed there as a protection and that the title was not -to pass until it was weighed and the balance of the purchase money was paid? [513]*513From the testimony of the plaintiff, Morgan, and parts of Patterson’s, the jury conld well infer that the delivery of the receipts was conditional and there was no intention between the parties that the title to the cotton should thereby pass absolutely or until the contract was completed by weighing the cotton and paying for same in full. There was other evidence, however; from which the jury could infer that the intention of the parties was that the delivery of the receipts was unqualified and that the title to the cotton should thereby pass to the purchaser; at least they could infer this from the letter and check, the conversation between the plaintiff and White, and certain parts of the testimony of Patterson, and we do not think that either side was entitled to the general charge, and the question was properly submitted to the jury.
Nor should the question be decided upon the technical words of Avhether the $80,000 was loaned, advanced, or made as a partial payment, but Avhether or not. it was received and the cotton receipts were turned over and received Avith the intention that the title to the cotton as represented by said receipts Avas to pass to the vendee.
The plaintiff explained the circumstances under Avhich the $30,000 was procured and was corroborated by Morgan. Patterson also, in a measure, corroborated these Avitnesses, though some of his evidence was against the conditional delivery theory. The check and letter did not become the sole repository of the contract, but should have been taken, in connection with the conversation and negotiations leading up to same, and there avus nothing in them, even if so taken, as to conclude that the delivery of the receipts was absolute and unconditional.
[514]*514Moreover, the question of delivery, even of instruments required to be in writing and whether absolute or not, is subject to parol evidence. So, in the end, the main question in this case was one of intention between the parties, as the contract was not a complete one, upon one theory of the case, for the construction of the court alone,, but just what it really was and what the parties intended was a question for., the jury. — Mechem on Sales, § 502.
The letter and check contained words of a well-known meaning, it is true; but as to the application of which, under the then existing circumstances, there was some doubt and uncertainty. For while the word “surrender” has a well-known meaning, the receipts could have been surrendered and not absolutely for the purpose of passing the title to the cotton. They may have been “surrendered” as collateral security to be held by the bank to protect the vendee and itself, as the said bank advanced the $30,000 credited to the plaintiff.
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ANDERSON, J.
“After the formation of the contract of sale, the question of its effect arises as to- when the bargain amounts to an actual sale or when it is a mere executory agreement. The distinction between the two contracts consists in this: That in a bargain and sale the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the seller; whereas, in an executory agreement, the goods remain the property of the seller till the contract is executed. This distinction is of importance in two connections: First, as between the parties to the contract, in order to determine upon whom the loss shall fall in case the property is destroyed, for it is plain that, if the subject of the sale is lost or destroyed, the loss- must fall upon the party who holds the title; thus, if before the transfer has taken [511]*511place a loss accrues, it falls upon the seller, otherwise upon the buyer. And, second, in order to know what right creditors or subsequent purchasers of one party may acquire as against the other. An executory contract of sale becomes executed upon delivery and acceptance of the goods in accordance with the contract with intent to pass title.” — 24 Am. & Eng. Ency. Law, 1045.
“Mr. Benjamin, in his work on Sales, in discussing executory or conditional sales of chattels, in section 320, says: ‘Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer..’ The foregoing is in harmony Avith the rulings of our oavu court. —3 ^Brickell’s Digest, 732, § 9, and cases there cited. These cases must be limited, hoAvever, to contracts wherein it does not appear that an intention to make the sale absolute and complete, Avithout any regard to the performance of these usual prerequisites, at least as to price and measurement. — Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43.” Wheeler v. Cleveland, et al., 170 Ala. 432-433, 54 South. 277, 278.
“Where the rule exists that the property presumably does not pas's if something remains to be done to ascertain the price, the rule is everyAvhere merely one of presumption which Avill yield to evidence showing an intent to transfer the property immediately. The most noticeable circumstance tending to show an intent to transfer the oAvnership is delivery of the goods to the buyer. It has already been observed that, even though something remains to be done to put the goods in a deliverable condition, actual delivery of the goods would [512]*512indicate, in the absence of express retention of ownership, an intent to transfer it immediately. This is still more clearly true where nothing remains to be done but weighing or measuring to fix the price.” — Williston on Sales, § 269; Mechen on Sales, 515; Francis-Chenoweth Hardware Co. v. Gray, 104 Ala. 236, 15 South. 911,. 53 Am. St. Rep. 37.
In determining whether the parties to the contract, for the sale of personal property intended that title should pass so as to complete the sale, the actual delivery of the goods is of the greatest importance; and if there be accompanying declarations, showing an intention that the property should pass to the vendee immediately, and not at some future time, the fact of delivery, as evidence of intention, becomes manifestly the most cogent of all legal proofs, when the good faith of the transaction is not impugned. — Shealey v. Edwards, 73 Ala. 175, 49 Am. Rep. 43.
In the case at bar there was no actual delivery of the cotton, but a constructive delivery by depositing the receipts with the bank upon the receipt of the check for $30,000, which was not the entire purchase price, but which, according to all the evidence, was either a loan, advance, or partial payment. So the question arises: Was the delivery of the cotton receipts an unqualified one and with the intention of passing the title to the cotton into Knight, Yancey & Co., or was it a qualified delivery and intended merely to protect Knight, Yancey & Co. and the bank as security for the $30,000 so advanced or loaned? In other words, did the parties intend that the delivery was unconditional and was made for the purpose of passing the title to the cotton, or that the receipts were merely placed there as a protection and that the title was not -to pass until it was weighed and the balance of the purchase money was paid? [513]*513From the testimony of the plaintiff, Morgan, and parts of Patterson’s, the jury conld well infer that the delivery of the receipts was conditional and there was no intention between the parties that the title to the cotton should thereby pass absolutely or until the contract was completed by weighing the cotton and paying for same in full. There was other evidence, however; from which the jury could infer that the intention of the parties was that the delivery of the receipts was unqualified and that the title to the cotton should thereby pass to the purchaser; at least they could infer this from the letter and check, the conversation between the plaintiff and White, and certain parts of the testimony of Patterson, and we do not think that either side was entitled to the general charge, and the question was properly submitted to the jury.
Nor should the question be decided upon the technical words of Avhether the $80,000 was loaned, advanced, or made as a partial payment, but Avhether or not. it was received and the cotton receipts were turned over and received Avith the intention that the title to the cotton as represented by said receipts Avas to pass to the vendee.
The plaintiff explained the circumstances under Avhich the $30,000 was procured and was corroborated by Morgan. Patterson also, in a measure, corroborated these Avitnesses, though some of his evidence was against the conditional delivery theory. The check and letter did not become the sole repository of the contract, but should have been taken, in connection with the conversation and negotiations leading up to same, and there avus nothing in them, even if so taken, as to conclude that the delivery of the receipts was absolute and unconditional.
[514]*514Moreover, the question of delivery, even of instruments required to be in writing and whether absolute or not, is subject to parol evidence. So, in the end, the main question in this case was one of intention between the parties, as the contract was not a complete one, upon one theory of the case, for the construction of the court alone,, but just what it really was and what the parties intended was a question for., the jury. — Mechem on Sales, § 502.
The letter and check contained words of a well-known meaning, it is true; but as to the application of which, under the then existing circumstances, there was some doubt and uncertainty. For while the word “surrender” has a well-known meaning, the receipts could have been surrendered and not absolutely for the purpose of passing the title to the cotton. They may have been “surrendered” as collateral security to be held by the bank to protect the vendee and itself, as the said bank advanced the $30,000 credited to the plaintiff. Again, the letter instructed the bank to deliver the check upon the surrender of the receipts, which said receipts he is to deliver to you “for our account.” Now, if this was money, there could be little doubt as to what was to be done with it, but, being cotton, it was open to explanation as to what was meant by “for our account”; whether to secure the bank and themselves for the $30,-000, or whether the cotton was to be treated as the property of the vendee and sold by the bank and the proceeds credited to the said vendee. The evidence as to what formed the contract, upon one theory of the case, when taken in its entirety, was sufficiently vague and uncertain, as to the exact purpose for which the receipts were delivered, that evidence of a well-established usage or custom controlling such transaction was admissible, as a presumptive fact that the parties had [515]*515such usage and custom in mind when dealing with each other.
Such custom, to be operative, must be reasonable, not against the law or public policy, nor opposed to any express terms of the contract, and must be so general and so known as to justify the presumption that the parties knew it and contracted with reference thereto. —Western Ry. Co. v. Hart, 160 Ala. 614, 49 South. 371.
If the parties expressly agreed that the receipts were to be held as security, or if they expressly agreed that the delivery was to be absolute and for the purpose of passing title, then there was no operation for evidence of custom, as custom could not change the express contract. On the other hand, if there is an inference that the contract was incomplete in part, or that the words employed were of doubtful signification, as applied to the facts in the case, and which was the result here, under one aspect of the case, then evidence of such a custom as above mentioned was admissible for the purpose of showing that the parties had said custom in mind and contracted with reference to same.
There ivas no error in permitting the custom in Uniontown of cash sales of cotton. Moreover, that is the law, unless parties make different contracts or so conduct themselves as to indicate that the sale was not for cash.
Nor was there error in permitting the proof of the custom of making partial payments or advances on cotton before the cotton is reweighed and delivered, and that the receipts are always deposited with the bank as a mere security for the partial payment or advance. It is true the witness “Capt. Johnston” did not testify that these advances were a common custom, but that it was the custom to deliver the cotton upon payment in full and after reweighing. He stated, however, that [516]*516these advances were often made, and, when so made, it was always the custom to surrender the receipts to be held only as security for the sum advanced and which was to be deducted upon final settlement. The result is that such transactions seem to have been the exception rather than the rule; yet, when they were so*had, it was the unbroken and well-known custom to deposit the receipts as security for the advance, and we think that proof of this custom where such transactions occurred was admissible.
There were two theories under which the jury could have.found for the plaintiff: First, that there was an express agreement that the advance of $30,000 was to be a loan, and that the receipts were delivered only as security; second, that, even if there was no express agreement of a loan, the contract of sale and delivery was open to explanation and was so uncertain and incomplete that evidence of usage and custom was admissible to show what the parties intended and had in mind when advancing the money and delivering the cotton receipts, and from which the jury could infer an absolute sale and delivery, a conditional sale only, or an implied loan or advance with the delivery of the receipts as collateral security. Evidence of usage and custom was admissible under the second theory, but not under the first. The trial court, at the request of the claimant (charge 3) peremptorily charged the plaintiff out .as to the second or implied theory, and confined his right to recover solely upon the existence of an express agreement that the $30,000 Avas a loan and that the receipts were delivered pursuant to said agreement, thus, in effect, charging out all evidence going to the establishment of the second theory and which had no bearing upon the first theory. Therefore all evidence as to the usage and custom when similar transae[517]*517tions were had could not and did not have any bearing on the only question submitted to the jury — that is, an express loan vel non — and said evidence did not tend to contradict or corroborate the existence of an express agreement that the advance was to be a loan. Under this charge the jury found for the plaintiff, and, in order to do so, found that there was an agreement between Wolf and Patterson that the advance was a loan and that the cotton was delivered pursuant to said agreement, therefore the evidence as to the usage and custom could not have had any legitimate influence upon this issue; so, if there was any error in the testimony of the witnesses as to custom and usage, or in giving opinions and conclusions as to what was or was not a delivery or a loan according to said usage and custom, it was error without injury, as it did not tend to establish or disprove an express agreement. The only evidence, as to Avhich error is insisted upon, that could have any bearing upon the only issue upon Avhich the plaintiff could recover, under the charge of the court, was in permitting the plaintiff, Wolf, to prove that he had the receipts changed so as to concentrate the cotton. This was no doubt a circumstance that he Avas exercising dominion over the cotton and was perhaps corroborative of a loan theory, and as a rule a party cannot by his OAvn acts or declarations, after the transaction, make evidence for himself, and, if this evidence stood alone, it might be error; but the witness stated, and Avithout contradiction, that this was done at the request of Patterson. It Avas not therefore a mere voluntary exparte act of the plaintiff.
The judgment of the circuit court is affirmed.
Affirmed.
All the Justices concur.