After a continuance, for advisement, the opinion of the Court was prepared by

We perceive nothing conditional, in the sale of the shingles in controversy, from Perry to the plaintiffs. The terms of the bill of sale are absolute, and payment is acknowledged. The transfer of the lumber thence resulting, between the parties, is not affected or qualified, by the contingency under which Perry was to receive an additional consideration. Nor does it appear to us to make any difference, that it was a part of the bargain, that Perry was to perform certain services for the plaintiffs, in the transit of the lumber. It was an agency undertaken and assumed on their account. When the lumber thus sold was designated and set apart from the mass, of which it was a part, the contract of sale was consummated, at least between the parties; and the plaintiffs had a right to take immediate possession.

The defendants also claim under Perry, and by an instrument bearing date near a month prior to the sale to the plaintiffs. The title of Chase, who sold to the defendants, was either as a pledge or a mortgage ; or if he was a purchaser, he was liable to account for the proceeds, after paying himself. In determining the questions submitted to us, these transactions may be assumed to have been free from fraud. The two instruments of sale are not necessarily conflicting. There may have been lumber enough both for the *120plaintiffs and Chase; and there is some evidence to this effect in the case. Regarding the paper given to Chase as evidence of a mortgage, his right would attach as mortgagee, notwithstanding Perry retained the possession, if the quantity expressed in it was severed, and set apart from the aggregate, of which it was a part, prior to the sale and delivery to the plaintiffs, and not otherwise; and the jury have neither found this fact, nor is there any evidence reported to prove it. But as Chase took possession of the lumber, it seems to have been intended that he should hold it, either by way of pledge, or as a purchaser, which some of the terms of the instrument indicate, in which case it must have been understood, that he was to account for its value, beyond what was required for his own security. It is unnecessary however to settle whether Chase is to be regarded as a pledgee or a purchaser. In either case, the rights of the parties, so far as they are conflicting, are to be governed by the principles decided in the case of Lanfear v. Sumner, 17 Mass. R. 110, that where different persons claim the same goods by conveyances equally valid, he who first lawfully acquires the possession, has the better title. And this fact the jury have found in favor of the plaintiffs.

But it is insisted that there is no evidence of delivery to the plaintiffs, or of possession taken by them, and that the Judge was not legally warranted in leaving it to the juiy to infer such a fact from the evidence, if satisfied that it existed. The evidence was, that as many thousands of the shingles as were sold to the plaintiffs, were marked with the initial of the surname of one of them, and that they claimed such as were thus marked as their property. This coupled with their bill of sale, must, we think, be regarded as evidence of a delivery to them, proper to be left to the jury. There was ample time for such designation and delivery between October, when their bill of sale is dated, and the following May, when Chase took possession. In Melvin v. Whiting, 13 Pick. 184, it was holden to be altogether uncertain whether the initials engraved in the rock, were indicative of a claim to the soil or to the fishery; but in this case the mark clearly indicated a claim to the shingles. It was evidence, that those thus marked were set apart from file rest, and belonged to him, whose mark was affixed.

*121Tlie jury having found, that tlie plaintiffs had the first delivery, their title is good, aside from any assignment of Perry’s permit to them. He had an undoubted right to sell the shingles when made. Ramsdell, of whom he purchased the timber, does not interpose, if he had any right to do so. The assignment of the permit being immaterial, we cannot sustain the exceptions taken to the instructions of the Judge upon that part of the case, if their correctness was questionable, in regard to which it is unnecessary to give an opinion. From the evidence it would seem, that if judgment is rendered on the verdict, Chase’s title to the entire quantity, mentioned in his bill of sale, will remain unaffected, having received an excess equal in value to what the plaintiffs have recovered.

Exceptions overruled.