#### Horatio N. Hovey and John B. McCracken v. James Gow.

*Contract*— Sale—Retention *of title*— Taxes—Replevin.

*A*contract for the sale of lumber provided that it should belong-to the vendors until shipped, in the spring of 1889, and when so shipped should be free of any insurance charges or taxes-that might be assessed against it. A portion of the lumber was seized to satisfy taxes assessed for 1888 against the vendees, which was replevied by the vendors. And it is held that the contract is unambiguous, and that under it the vendors-remained the owners of the lumber until it was shipped.

Error to Muskegon. (Dickerman, J.)

Argued May 15, 1890.

Decided June 6, 1890.

Replevin. Defendant brings error.

Affirmed.

The-facts are stated in the opinion.

*DeLong & O’Hara,*for appellant,

cited no authorities.

*Smith, Nims, Iloyt é Erwin,*for plaintiffs, contended:

1. The intention of the parties as expressed in their contracts is to-govern in their construction; citing *Mathews v. Phelps,*61 Mich. 327; and the manifest meaning of a contract must govern until it is shown to be impracticable; citing *Gillett v. Bowman,*43Mich. 477; and the whole instrument is to be construed together, and effect given, if possible, to every word and phrase;, citing *Vary v. Shea,*36 Mich. 388; and the terms of an instrument, when clear and explicit, must prevail according to their most comprehensive signification; citing *Merrick v. Webster,*3 Mich. 268.

Cahill, J.

This was an action of replevin, commenced by Hovey & McCracken, to recover a quantity of lumber, which in March, 1889, had been seized by the defendant, as city treasurer of Muskegon, to satisfy a. claim for taxes assessed against A. P. & *W.*E. Kelley *315Company of Chicago, on certain personal property of theirs situate in Muskegon, and liable to assessment there.1 The amount of the tax was something over $1,000.

The plaintiffs claim to be the owners of the lumber in suit, and their claim is based upon the following contract-made between them and A. P. & *W.*E. Kelley Company:

> “Muskegon, Mich., Nov. 20, 1888.

> “ A. P. & "W. E. Kelley Co. have this' day bought, and Hovey & McCracken have sold, one million feet selected Eaglehead lumber, now in cross-piles on McCracken, Hovey & Co/s docks, in Muskegon, and one and one-half million feet additional to be cut from their Eagle-head logs, the lumber to be sorted and cross-piled as to quality same as above, that being sixty per cent, of the better lumber in the logs.

> “Hovey & McCracken guarantee to sort lumber, as follows: Forty per cent, of the coarsest by itself, and they are to retain it. The remaining sixty per cent, by itself for A. P. *& W.*E. Kelley Co. At the close of the- present sawing season, C. S. Montague is to estimate lumber on dock, and determine as to the percentage as to sorting as above required. If sorted within two per cent, of above requirements, either way, then this contract is to be in force: if- more than two per cent., it is at the option of the A. P. & W. E. Kelley Co. whether they take 'it or not; but they are to decide and notify the' sellers within five (5) days after said estimate is made.

> “The lumber is to be sawed and trimmed in a good and workman-like manner, and cross-piled on McCracken, Hovey & Co/s docks, and held until the spring of 1889 at the seller’s risk; all the lumber to be cross-piled loose, and" the piles to have good pitch; all the piles to be covered and tied down, to shed snow and rain.

> “ The seller agrees to commence sawing at once on the one and one-half million feet yet to be sawed, and continue on same till the close of the present sawing season. In case the whole amount is not cut at that time, they will commence at the opening of navigation, in spring of 1889, and complete the sawing of the same.

> “ The purchasers buy the above-mentioned lumber on the following terms: The lumber is to be settled for by *316the sellers’ draft on the purchasers at such time, but not later than December 1, 1888, as the purchasers may elect, not exceeding six months’ time from December 1, 1888; but the price must be eighteen and fifty one-hundredths dollars ($18.50) net per thousand feet, and half tally to the seller, December 1, 1888. Final settlement to be made when lumber is shipped, in spring of 1889. It is distinctly agreed that this lumber belongs to the sellers until shipped, in spring of 1889, and when so shipped it is to be free of any insurance charges or taxes that may be assessed against said lumber.' All mill-culls to be taken out when shipped, and lumber to be tallied by C. S. Montague.

> “ It is further mutually agreed, between the sellers and purchasers that, in the event of the loss of any portion of this lumber by fire, the purchasers may elect whether the trade is to be considered off for that portion of the lumber so destroyed, and the money refunded that may be due them, with interest at seven per cent, from the time the money was actually paid, or the purchasers may have the right, if there are any logs of the same mark on hand, to have this lumber so destroyed duplicated by sawing the same amount and quality, in manner as before. In case there should be any lumber burned, and no logs on hand to replace the lumber, the sellers are to refund to the purchasers to the amount of $18.50 per thousand feet, and interest at seven per cent., for the amount so destroyed.

> “A. P. & *W.*E. Kelley Go. [l. s.]

> *“*A. P. Kelley, Pres.

> *"*Hovey *&*McCracken, [l. s.]”

The lumber replevied was a part of the same lumber covered by this contract, and was worth $3,700. Mr. Hovey, one of the plaintiffs, testified, on cross-examination, that at the time this contract was made there was about 1,000,000 feet of the lumber sawed, and that they afterwards sawed five or six hundred thousand more; that it was not contemplated that any of this lumber was to bo shipped until the spring of 1889; that the lumber amounted to $46,250 according to the tally when shipped; that $45,000 had been paid upon it before the defendant *317seized it; that at the time of the seizure all the lumber that had been sawed at that time was piled out for the Kelley Company; that the mark they had on it was “Eaglehead No. 1;” that he could not say whether it had “K" marked on it or not; that the defendant seized eight piles of lumber, containing about 200,000 feet, out of fifteen or sixteen hundred thousand piled on the same dock; that all this lumber, including the 200,000 feet replevied, was finally shipped to the Kelley Company, who paid the plaintiffs, the balance due on it.

The regularity of the defendant’s tax roll and warrant, and the fact that it showed a personal tax against A. P. *So*W. E. Kelley Company for $1,089.46, was conceded. The court directed a verdict for the plaintiffs, and the defendant brings error.

The single question involved is as to whether, under the contract between -the parties, the title to this lumber had passed from the plaintiffs to A. P. *So*W. E. Kelley Company. By the contract it is distinctly agreed that the lumber should belong to the sellers until shipped, in the spring of 1889, and when so shipped to be free of any insurance charges or taxes that may be assessed against said lumber. Upon this record we are not concerned with any reasons or motives that may have influenced the parties in putting this provision into their contract. Whether it was to require the plaintiffs to pay the taxes that might be levied upon it does not appear. Nor was it claimed that there was any unlawful or fraudulent purpose in putting such provision in the contract. It is not for the courts to make contracts between parties; they can only construe and enforce those that have been made. We see nothing ambiguous or doubtful about the meaning of this contract. We think it clearly and explicitly provided that the plaintiffs should be owners of the lumber until' it was shipped. *318By another provision of the contract, the lumber was to be tallied by O. S. Montague, and a final settlement was not to be made until the lumber was all shipped. If it fell short of the estimated quantity, there would be that much less money going to the plaintiffs. If they suffered the 200,000 feet seized by the defendant to be taken away and applied towards the payment of the A. P. *& W.*E. Kelley Company debt, they would not have been entitled to claim from A. P. & *W.*E. Kelley Company the value of that lumber at the contract price as though shipped. It was of importance, therefore, to the plaintiffs to reclaim this lumber so as to be able to ship it, as otherwise they must have lost the price of it.

The judgment is affirmed, with costs.

The other Justices concurred.

1

 The taxes were assessed for the year 1888.