DELIVERY AND TRANSFER OF TITLE 187 



the possession of the purchaser will not operate to transfer 

 the title if it be the understanding of the parties that pay- 

 ment in cash or other form shall be a condition precedent 

 to the legal delivery of the timber; l and if a contract of sale 

 requires a delivery of logs, lumber, or other products on cars 

 at a certain place a subsequent marking of the specific goods 

 to be covered by the sale as "sold and delivered" will not 

 effect a transfer of the title. 2 The conditional acceptance 

 of a part of the logs contemplated by a contract of sale does 

 not preclude the purchaser from obtaining damages for a 

 failure of the seller to comply fully with the requirements 

 of his contract; 3 and an acceptance of logs delivered later 

 than the time stipulated in the contract does not constitute 

 a waiver of the right of the purchaser to recover the damages 

 suffered, if there are not circumstances showing intention 

 to waive this right. 4 The keeping of lumber for a period 

 of fifteen days without objection has been held to establish 

 an acceptance of it. 5 A delivery of ties along a railroad 

 track as agreed and an inspection of the same will consti- 

 tute a legal delivery and effect a transfer of title in the ab- 

 sence of a showing of fraud as to the inspection. 6 The 

 same principle has been applied to lumber 7 In a Michigan 

 case in which lumber of one party in the mill yard of another, 

 acting as agent, was sold to a third party at specified rates 

 for different qualities, the amount of which was not ascer- 

 tained at the time of sale, with an agreement that the seller 

 should stand all charges of putting the lumber over the rail 

 of the vessel and that the cost of inspection was to be shared 

 equally, and with no payment for lumber till after shipment, 

 it was held that the title did not pass at the time of the 

 sale; 8 and in New York under a contract for the planing of 

 lumber to be selected from various piles in a mill yard and to 

 be taken in installments as notification was given that a 



1. Adams v. Roscoe Lbr. Co. (N. Y.) 53 N. E. 805; Woolsey v. Axton (Pa.) 43 Atl. 



1029. 



2. First Nat' 1. Bank v. Peck, 70 N. Y. Suppl. 471. 



3. Duplanty v. Stokes, 103 Mich. 630, 61 N. W. 1015; Walker v. Cooper, 150 N. C. 



128, 63 S. E. 681. Cf. Lumber Co. v. Hopson, (Ark.) 133 S. W. 823. 



4. Belcher v. Sellards (Ky.) 43 S. W. 676. Cf Lbr. Co. v. Irwin. 24 Can. S. Ct., 607. 



5. O'Sullivan v. New York Lumber Corp. 61 N. Y. Suppl. 493 



6. Intern'l & Gt. Nor. R. B. Co. v. Ogburn (Tex. Civ. App.) 63 S. W. 1072. 



7. O'Sullivan v. New York Lbr. Corp., 61 N. "V. Suppl. 493. 



8. Lumber Co. v. Charlton (Mich.) 87 N. W. 268. 



