Lou E. Chambers, Appellant, v. Hamilton S. Austin, Respondent

Lou E. Chambers, Appellant, v. Hamilton S. Austin, Respondent. Contract to furnish, at future dates, lumber of a specified, quality and finish — when the title passes. The owner of a sawmill on February 25, 1899, agreed to furnish 10,000 feet of lumber of a certain specified quality and finish and to have a portion of such lumber ready for delivery by May 15, 1899, and the balance by June 1, 1899. At the time of the execution of the contract 25,000 or 30,000 feet of lumber were stored in the vendor’s millyard in different piles, and the parties contemplated that from the lumber so stored the lumber to be furnished would be selected, planed and prepared by the vendor, but no particular part was' set apart or designated for that purpose. During the month of April the vendee of the lumber drew away 6,000 feet of finished lumber which the mill owner had notified her were ready for delivery, May seventeenth, the mill owner prepared 2,145 feet of lumber for her, but did not notify her of that fact or that the lumber was ready for delivery. May twenty-fourth, this lumber was burned. Held, that the title to the lumber destroyed was in the mill owner at the time of the fire and that the loss must fall upon him. Appeal by the plaintiff, Lou E. Chambers, from a judgment of the County Court of St. Lawrence county in favor of the défendant, entered in the office of the clerk of the county of St. Lawrence on the 31st day of May, 1900, affirming a judgment rendered by a Justice’s Court in favor of the defendant. On February 25, 1899, the defendant, as a part of the consideration of a barn and lot that day conveyed to him by the plaintiff, agreed, in writing, to furnish the plaintiff 10,000 feet of dry pine lumber, 6,000 feet of which were to be of a good quality, Ho. 2, planed on one side and matched, 12 feet in length, and 4,000 feet to be Ho. 3, sound knots, straight edge, planed on one side and matched, 12 feet long, and to have the part for siding ready at the defendant’s mill by May 15, 1899, and the whole by June 1, 1899. The defendant was the owner of a sawmill, and at the time of the contract there were piled up in his mill yard 25,000' or 30,0001 feet of lumber, in different piles, from which the lumber to be finished for the plaintiff was to be taken, but no particular piles were designated. About the first of April the defendant informed the plaintiff that he was getting her, lumber planed and wanted her to take it from the mill, and she thereafter drew from time to time as the lumber was finished and ready for her during the month of April 6,000 feet. The defendant’s mill was. burned on May twenty-fourth, and he says that on the seventeenth day of May he planed. and prepared for the plaintiff 2,145 feet of' lumber, which was burned with his mill seven days thereafter. The defendant gave-no notice to the plaintiff that he had planed this 2,145 feet and that the same was ready for delivery. In June and July the plaintiff received the remainder of the 10,000 feet except the 2,145 feet, which the defendant refused to deliver, and to recover the value of which this action was brought. ■ John L. Houston, for the appellant. ■ F. J. Gray, for the respondent. [MAJORITY — Edwards, J.:] Edwards, J.: The question in this case is on whom must fall the loss of the 2,145 feet of lumber destroyed by fire on May 24, 1899, and that depends upon the question as to whether the title was at that time vested in. the plaintiff or'in the defendant. The agreement was not for any specific lumber finished and ready for delivery. It was for 10,000 feet of lumber* 6,000 to be of a certain quality-and finish, and 4,000 of another, a part to be-ready at defendant’s mill by May fifteenth and the remainder by June first. The defendant then had in his mill yard 25,000 or 30,000 feet of lumber, from which it was contemplated by the parties -that the lumber for the plaintiff should be selected, planed and prepared by'the defendant, but no part of that lumber was set apart or designated by the parties, as the property of the plaintiff.- The contract was purely executory on the part o‘f the defendant, and under it he retained title to the 2,145 feet in question until it should be set apart for the plaintiff in its completed state and she duly notified that it was ready for delivery. (Comfort v. Kiersted, 26 Barb. 472; Halterline v. Rice, 62 id. 593; Higgins v. Murray, 4 Hun, 565; Bliss Co. v. U. S. Incandescent Gas Light Co., 149 N. Y. 300.) The plaintiff had no' notice that this 2,145 feet had been completed and no opportunity to inspect or accept it before the fire. If the defendant, after the Completion of this lumber, on the seventeenth of May, had sold and - delivered it to some other customer, it cannot be questioned that such purchaser would have had a good title. The title was in the defendant at the time of the fire and he must bear the loss. The judgment of the County Court a,nd of the Justice’s Court should be reversed, with costs. All concurred. - Judgment of the County Court and of the Justice reversed on the law and facts, with costs of this court and in the courts below.