
    Morrow vs. Campbell and others.
    
      Delivery — Beyuisites of topase title.
    
    Under a contract that A. shall get out logs and deposit them at a certain spot, and that as fast as they are so deposited the title shall vest in B., the actual deposit of the logs by A. at the place named passes the title to B.; and it makes no difference whether or not, at the time of so depositing the logs, A. “ intended then and there to deliver them to B., and to part with his property in them.”
    APPEAL from the Circuit Court for Brown County.
    The facts of this case, in all essential particulars, with a single exception, are substantially the same as in another case between, the same parties, argued and decided at the present term. They will be found fully stated in the report of that case, page 81, ante, and it is unnecessary to repeat them here.
    The exception above referred to is, that the following instructions were given by the court to the jury, which were not given in the other action, to wit:
    6. “ In order to constitute a valid delivery it must have been the intention of the one party to deliver and the other to receive at the time of such delivery. The jury cannot therefore find a valid delivery of the logs to the Howard Mill Co. at Whitney’s Bluff, unless they believe that at the time the logs were hauled there and left by the McDonalds, the latter intended then and there to deliver the same to the Howard Mill Co., and to part with the property in the logs themselves.”
    7. “ Even if the jury believe that the contract between the McDonalds and the Howard Mill Co. was, that the logs should become the property of the latter as fast as delivered at Whitney’s Bluff, that would not convey the property in the logs to the company, unless, at the time the logs were actually deliv ered upon the shore, it was by the parties intended as an actual delivery to the Howard Mill Co., and as vesting the property in the logs in them absolutely.”
    
      Tbe foregoing instructions were given at tbe request of tbe plaintiff, and duly excepted to by tbe defendants.
    It is believed that all tbe questions presented by this appeal, except that of tbe correctness of sucb instructions, are determined in tbe other action
    Tbe plaintiff recovered in tbe court below, and from tbe judgment against tbem tbe defendants appeal.
    It should be stated that a part of tbe defendants constitute members of tbe Howard Mill Company named in tbe instructions.
    
      Hastings & Greene, for appellants.
    
      Neville & Tracy, for respondent.
   Lyok, J.

Tbe original contract Detween tbe Howard Mill Co. and tbe McDonalds, was that tbe latter should furnish and deliver to tbe company in its boom at Fort Howard, a specified quantity of pine saw logs. Tbe evidence tends to show that there was a valid modification of tbe contract made by tbe parties after it was executed, to tbe effect that tbe McDonalds should put tbe logs on tbe bay shore for tbe mill company, and that as tbe logs were placed there they should become tbe property of tbe company. If tbe contract was thus modified, tbe title of tbe McDonalds to tbe logs, as fast as they were put on tbe bay shore, vested in tbe company, until tbe quantity equalled that which tbe contract called for. Tbe proposition that it was competent for tbe parties to so contract that tbe McDo-nalds’ title to tbe logs would pass to tbe mill company by tbe mere act of placing tbem upon tbe bay shore, and without any other act or ceremony whatever, is too well settled to require argument or citation of authorities to sustain it.

But tbe court instructed tbe jury substantially that although sucb contract bad been made between tbe McDonalds and tbe mill company, and although tbe McDonalds got out tbe logs and delivered tbem at tbe designated place in apparent performance of their agreement, still no title thereto passed to tbe company unless tbe McDonalds at tbe time intended to deliver tbem to tbe mill company. Yery clearly tbis is error. If tbe McDonalds and tbe Howard Mill Co. agreed tbat tbe former sbonld get out a specified quantity of logs for tbe latter and put tbem upon tbe bay shore, and tbat as fast as they were so delivered upon tbe bay shore tbe title to tbe logs should be in tbe company, and if afterwards tbe McDonalds got out tbe logs, and, while tbe owners thereof, put tbem at tbe designated place, tbe same thereupon became tbe property of tbe company. It is entirely immaterial what tbe intentions of tbe McDonalds were in relation to tbe delivery. Tbe question is not, in tbis case, what did they intend to do ? but what did they do ? Tbe court will look only to their acts, and not to their mental processes. If while tbe contract for tbe sale of tbe logs remained execu-tory, they desired to prevent tbe title thereto from passing to tbe company, they could only do so by abstaining from executing tbe contract: Ghat is by abstaining from placing tbe logs at tbe designated place, while they were tbe owners thereof. Having placed tbem there, if tbe agreement was as is claimed by tbe mill company, and as tbe testimony tends to show tbat it was, neither the McDonalds or any other person claiming under tbem can be beard to aver tbat they placed tbe logs there with tbe mental reservation tbat they did not intend by tbe act to fulfill such contract, but to violate it.

Were tbe law otherwise, then any person might sell property, receive payment therefor, and actually deliver it to tbe vendee, who purchases in tbe utmost good faith; and yet, afterwards, when tbe property is seized by a creditor of tbe vendor on attachment or execution, tbe title of the purchaser would be liable to be defeated, if tbe vendor should testify tbat when be delivered tbe property to tbe vendee be did not intend to deliver it to him at all, but cherished tbe secret purpose of asserting bis own title thereto at some future time. Take another illustration. A. sells a horse to B. and agrees to place him in tbe stable of C., and tbe contract is, tbat when be does so, tbe title thereto shall become absolutely vested in B., who has fully paid the contract price. A. places tbe borse in the stable of C. where he remains for a week. During that time A. sells the horse again to D. and B., the first purchaser, brings his action to recover the horse or the value thereof of D., the last purchaser, who has possession of the property. Can the right of B. to the horse be defeated by proving that when A. placed him in the stable of C. his secret intentions were to swindle B. out of his payment by selling the animal to some other person? Of course not. The law of the case last supposed, is that when A. performed the act, which he agreed should transfer the title of the property to B., the title was thereby transferred to B., and the intentions or mental reservations of A., to the contrary, are of no consequence whatever. The principle involved in this case is precisely the same.

We hold, therefore, that if the contract was modified as claimed, a delivery of the logs at the designated place by the McDonalds vested their title thereto in the defendants, the Howard Mill Co., although the McDonalds at the time of such delivery might have secretly determined not to let the company have the logs but to dispose of them to other parties.

We are not here passing upon any questions which may be raised under the statute of frauds, in respect to the actual possession of the property in controversy.

It necessarily follows, from the foregoing views, that the circuit judge erred in his charge to the jury, in the particular hereinbefore specified, and for that reason there must be a new trial.

By the Court — Judgment reversed and a venire de novo awarded.  