
    No. 337
    No. 18213
    Victor E. Rehr, Receiver for the Warren Cartage and Coal Co., v. The Trumbull Lumber Co.
    Error to the Court of Appeals of Trumbull County.
    1063. SALES — Price to be paid upon arrival of goods — Purchasers unloading not such a delivery as passes property before payment is made — Secs. 8398 and 8389 GC. construed— When transfer of property takesi effect — Intention of parties, how ascertained.
   MATTHIAS, J.

1. Where specific chattels are sold under a contract that the consideration named is to be paid in cash “upon arrival of these timbers” on the sidetrack at the purchaser’s plant, and such timbers are there unloaded by the purchaser but not further appropriated to his use, there is no absolute or unconditional delivery thereof, and in the absence of waiver of payment the property does not pass until the price is paid. (Baltimore & Ohio Southwestern Ry. Co. v. Good et al, 82 Ohio St., 278, approved and followed.)

' 2. Under the provisions of Section 8398, General Code, when there is a contract to sell specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred, and by the clear terms of that section and Section 8399, General Code, the rule set forth in the latter section for ascertaining the intention of the parties has no application where “a different intention appears” from “the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case.”

Judgment affirmed.

Marshall, C. J., Robinson, Jones, Day and Allen, JJ., concur. Wanamaker, J., not participating.  