Edward Hines Lumber Co. v. Township of Wells , 142 Mich. 366 ( 1905 )

Grant, J.

( after stating the facts). We think that the learned circuit judge was in error in holding that this case is ruled by Grand Rapids Bark & Lumber Co. v. Township of Inland, 136 Mich. 121. In that case the vendor agreed to sell lumber to be manufactured from logs from his lands, and to manufacture into lumber certain other logs which were to be purchased. The delivery was to be made by the vendor on board the cars. Lumber delivered direct from thé saw onto the car was to be a shilling less in price than that piled in the mill-yard. There had been no inspection, estimate, or delivery. The contract was executory until the lumber was delivered on the cars. In this case the lumber had been piled upon the docks ready for shipment. The amount and quality determined by examination and estimation by the parties. It was set apart and marked as the property of the plaintiff. It was under its control, and it could ship when it chose. Ninety per cent, of the purchase price had been paid. It had taken an assignment of the policies and paid for the insurance. The vendor had performed everything required of it by the contract, and, as this court said in Whitcomb v. Whitney, 24 Mich. 486:

“Everything now depended upon the action of the defendant [the vendee] which might be expedited or delayed as should suit his own convenience.”

For its own accommodation plaintiff left the property upon the dock after the opening of navigation, instead of removing it, as requested by the vendor. It is true that the exact amount might be varied by the inspection in Chicago, but this is not conclusive of the question of title. The retention of the 10 per cent, of the purchase price was to cover any inaccuracy in the amount of the estimate made. The case falls within Byles v. Colier, 54 Mich. 1, in which numerous cases are cited, and Lingham v. Eggleston, 27 Mich. 324, is distinguished from Byles v. Colier. While actual delivery is not essential to the passage of title (Byles v. Colier), we are of the opinion that the delivery contemplated by the contract was made, and the lumber was appropriated to the contract. McElwee v. Lumber Co., 69 Fed. 302.

The question put by Justice Cooley in Whitcomb v. Whitney is applicable here:

“ Suppose the defendant’s vessel had called at the dock for it [the lumber]; could plaintiff have refused to allow him to take the lumber away and maintained replevin for it if he had done so ?”

The reasoning of the learned justice in reply to the question is equally applicable here. See, also, Jenkinson v. Monroe Bros. & Co., 61 Mich. 454. The money which the I. Stephenson Company had received in payment of this lumber would have been subject to assessment for taxation to that company if in its possession at the time provided by law for the assessment of the property. We think it clear that the parties intended title to pass, and that it had passed.

Judgment reversed, and judgment entered in this court for defendant, with costs of both courts.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.