#### Abel A. Crosby *et al.,*App’lts, *v.*The President, etc., of the Delaware & Hudson Canal Co.. Resp’t.

*(Court of Appeals,*

*Filed February 25, 1890.)*

Bailment or sale—When a question eor the jury—Evidence.

On November 8, 1882, G. & E. Hamden accepted a written proposition of the defendant that if they would build two boats during the following months for delivery in the spring, “ the company will take them at §l,200j subject to inspection and approval by the company’s inspector." Subsequently, the lumber in question was ordered by the Harndens of defendant’s agent, and billed to them, specifying kinds and quantities, with an aggregate price. Nothing was said about lumber in the prior negotiations, but defendant gave evidence that it kept on hand lumber for boatbuilding which it furnished for building its boats, and that the value of the lumber was usually deducted from the price of the boat, and this custom was known to the Harndens. *Held,*that the bill of items was some evidence, but not conclusive as to its being understood as a sale; that the custom of defendant in supplying ¡umber only for use in its own boats was not necessarily inconsistent with a sale, and that the question whether there was a bailment or a sale was for the jury.

*454Appeal from judgment of supreme court, general term, third department, reversing judgment in favor of plaintiffs.

*/S. L. Stebbins,*for app’lts; *F. L.*Westbrooh, for resp’t

Andrews, J.

The transaction between the defendant and the Harndens was either a bailment of the lumber or a sale. Regarding it as a bailment, it was a bailment to be transmuted into a sale when the Harndens should use the lumber in building the boats, and thereby incorporate it with other lumber and materials required in their construction. It was not contemplated that the title to the boats should vest in the defendant until completion and acceptance. The consent of the defendant that the Harndens might use the lumber in the construction of the boats must be conceded.

The bailment would necessarily terminate and the title to the lumber would by operation of law vest in the Harndens, when it became by the consent of the defendant mingled with the lumber and materials of the Harndens in the process of constructing the boats. If after the boats had been constructed, the Harndens had refused to perform their contract, or to deliver the boats to the defendant, the latter could not have asserted title to them on the ground that the lumber furnished by the company went into their constructien. The Harndens would in the case supposed be liable for the value of the lumber as upon a purchase and sale, and possibly the defendant might enforce a lien on the boats to the extent of such value, in view of the circumstances.

There was no objection in law to an arrangement between the defendant and the Harndens, that until the lumber was actually used for the purpose intended, the title should remain in the defendant. The point is whether the evidence conclusively establishes this to have been the arrangement, or could the jury have been permitted, if the case had been submitted to them, to find that the transaction at the outset was a sale to the Harndens.

The contract for the boats was made November 8, 1882, by the acceptance by the Harndens of a written proposition of the defendant that if they would build two boats during the following winter, for delivery in the spring, “ the company will take them at twelve hundred dollars ($1,200), subject to inspection and approval by the company’s inspector.” The lumber in question was ordered by the Harndens of the defendant’s agent, November 21, 1882, and was delivered on or about the 24th. The contract for building the boats did not require the defendant to furnish any of the lumber, nor did it require the Harndens to procure any from the defendant. The order for the lumber specified kinds and quantities, but no prices. The defendant’s agent on forwarding the lumber sent a bill for the lumber, commencing “ Messrs. Q-. & B. Harnden, To The Delaware & Hudson Canal Co., Dr.,” and- this is followed by a specification of the quantity, kind and price of each description of lumber sent, the prices aggregating $412.77. The bill was partly written and partly printed, the ordinary bill head of the company being used, and the words, *n*ipo The Delaware & Hudson Canal Co., Dr.,” were printed. It *455does not appear that there were any negotiations between the parties prior to the delivery of the lumber, as to the terms and conditions on which it was to be furnished. The defendant, however, gave evidence showing that it kept on hand pine lumber for building boats, including pieces specially shaped, which it used in building boats at its own yards, and also furnished to boat builders having contracts to build boats for the defendant, but it was furnished to third persons only for the purpose of having the same used in such boats, and that the value of the lumber furnished was deducted from the price of the boat, and that this custom was known to the Harndens.

The bill of items is some evidence that the transaction was understood as a sale, although not conclusive. Whether a sale or a bailment, in either case, the sum to be charged for the lumber was a matter in which both the Harndens and the company were interested. The custom of the defendant to supply lumber only for use in its boats, and to take the value out of the price of the: boat, does not seem necessarily inconsistent with a sale.

The Harndens testified that formerly they paid cash on delivery of lumber furnished by the defendant for boats which they built for the company, and that later the custom was to deduct the-value of lumber so furnished from the price to be paid for the boat when completed, on delivery.

It is insisted by the counsel for the plaintiffs that the jury-might have found that the change was made from cash to credit sales, the credit extending 4o the time when by the contract the boat was to be completed.

We think it would not be useful to go further into the details of the evidence. There seems to be but little equity in the claim of the defendants to have the lumber applied on their debt. But we think the question whether there was a bailment or a sale was for the jury.

The judgment should, therefore, be reversed, and a new trial ordered. ,

All concur, except Peckham, J., not sitting.