
    WILDWOOD BOARD OF EDUCATION, APPELLANT, v. WEBSTER BRIGHT AND CENTRAL TERRA COTTA COMPANY, RESPONDENT.
    Submitted December 10, 1917
    Decided March 4, 1918.
    1. By a contract for constructing a building, the contractor agreed that in certain contingencies the owner might terminate the employment, enter the premises and take possession for the purpose of completing the work of all materials thereon; the contingency happened. Held, that by taking possession pursuant to the contract, the owner acquired title to the material.
    2. Under the facts of this case, the question whether building material had been sold under a contract of conditional sale was for the jury.
    On appeal from the Supreme Court.
    Replevin for a lot of terra cotta which had been supplied bv the Central Terra Cotta Company to the Richman Construction Company and delivered on the grounds of the Wild-wood Board of Education to be used in the construction of a school house by the Richman Construction Company. The school house was building under a contract between the Rich-man company and the board of education. One of the provisions was that upon being certified by the architect that the contractor had refused or neglected to supply enough men and material, or failed in the performance of any of the agreements, the owner might, after three days’ notice, provide the labor and materials, and if the architect should certify that such neglect was sufficient ground for such action, the owner should be at liberty to terminate the employment of the contractor and enter the premises and take possession for the purpose of completing the work of all materials, tools and appliances thereon. No question was made in the case that the situation was such that the owner's right to take possession had accrued. The president of the corporation contractor testified that they had abandoned the job. A verdict was directed for defendant.
    
      For the appellant, Lewis Starr.
    
    For the respondent, Hervey F. Carr.
    
   The opinion -of the court was delivered by

Swayze, J.

In order that the plaintiff may maintain this action of replevin, it must show its.own title to the goods in question. This depends — first, on the title of the Rickman Construction Company under which it claims, and second, on the fact of a transfer of this title to the plaintiff. We find it convenient to deal with the latter question first. We entertain no doubt that at least an equitable title can be passed to take effect in future on the happening of an agreed contingency. Brown v. Bateman, 2 L. R., C. P. 272; 36 L. J., C. P. 134; Lister v. Simpson, 38 N. J. Eq. 438; 39 Id. 595. The contract does not contain formal words passing title, but it authorizes the board of education to take possession ■ of all materials for the purpose of completing the work included under the contract. Delivery of possession is the ordinary way of passing legal title to tangible personal property. The possession is to be for the purpose of completing the work, and cannot avail for -that purpose unless the material is meant to be incorporated in the building and lose its identity. We feel no difficulty in holding that whatever title the Rickman Construction Company had, passed to the board of education. In fact, no question was made as to that. The defence was that the Rickman Construction Company had no title to pass. The title, it is said, was conditional upon the construction company paying the terra cotta' company for the goods. Under the original contract, made by correspondence, no condition was annexed to the ’sale. Several months later the defendant says that it refused to make delivery until satisfactory arrangements were made, and that it was agreed that the goods should be delivered on the property to the terra cotta company to be inspected by the architect on the ground, to be paid for as soon as inspected and to remain the property of the defendant until paid for. This, if established, made a contract of conditional sale. Whether it was established depended on the credence to lie given, by the jury to the witnesses, and the documentary evidence. Of tlie documentary evidence, the most important for the present purpose is a notice of a lien claim by the terra cotta company to the hoard of education. In this notice the defendant states that the materials were furnished and delivered to the liichman Construction company by the terra cotta company, pursuant to the terms of the written contract entered into between them on February 5th, 1916. This is the contract by letter of which we have spoken, and contains no conditions. In this situation we think it was a jury question whether the title had passed to the construction company. It was, therefore, error to direct a' verdict for the defendant, and the judgment must be reversed and the record remitted to the end that there may be a venire ele novo.

For affirmance — None.

For reversal — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 14.  