(after stating the facts).

1. The ques*680tions of the passage of title to the poles and of the surrender or discharge of the contract as to them were properly submitted to the jury. Whether title to the poles had passed depends upon the intent of the parties. The marking of the poles with defendant’s log mark was evidence of ownership. 2 Comp. Laws, § 5085. Was it understood by them that the title should pass, notwithstanding the arrangement that the poles were to be inspected after-wards ? That intent was a fact to be determined from the acts, conduct, and statements of the parties. Upon this point there was a clear conflict of evidence. The same is true of the other question involving the surrender or discharge of the contract as to the poles.

2. The learned circuit judge correctly instructed the jury that the plaintiff had fully performed the contract as to the posts and ties. He had delivered them at the places designated. They had been inspected and accepted. The delivery was complete. Payment was then due. The defendant did not pay. Under these circumstances, the plaintiff could have rescinded the contract, retaken the goods, and ignored the title of the defendant. If he had failed to pay upon delivery and had taken possession of the goods without payment, the plaintiff could have recovered them in a proper action. 24 Am. & Eng. Enc. Law (2d Ed.), p. 1185; 2 Mechem on Sales, § 1682.

This claim of defendant was not mentioned by the circuit judge in his charge. Was there evidence to sustain it ? Mr. Wilson, an agent for the defendant, testified that in a conversation with plaintiff, plaintiff told him that the timber was worth more than it was the year before, and that “the defendant had lost any supposed rights that it might have had to take it away, and couldn’t have it.” In' another conversation the same witness testified that plaintiff “ either wanted us to go there and take the timber on the terms which I have stated, or else to release the timber from the mark. He thought it should be released if there was anything in the mark that prevented him from selling the timber.” Plaintiff had had negotiations *681with one Gilpin to purchase the timber, but Gilpin hesitated on account of the defendant’s mark upon it. Mr. Wilson testified that he saw Mr. Gilpin and told him he could purchase it, and he would release it to Mr. Watson, that he subsequently saw Mr. Watson and told him specifically what he had done, and that plaintiff said it was satisfactory.

‘ ‘ I asked him if he wanted a written release from me, or if he wanted me to send to the Naugle Tie Company and get a written release. He said it was not necessary; that if I had been there and released the timber to Mr. Gilpin, and would now release it to him, that was sufficient.”

Another witness, Mr. Dean, who was sent by the defendant to see if there was any timber there, testified that plaintiff said to him:

“ There is no use of your going over to the island, because all the timber was shipped, and there was none there.”

In a letter of January 7,1904, plaintiff wrote defendant, demanding payment for the timber taken, and in that letter wrote:

“ I have waited and done without my money now for a year and now must insist on a settlement in full. If not, I shall proceed at once to enter suit. As for your Mr. Dean not going over to the island to count up, that does not annoy me, as the timber is worth the money where it is. I care nothing about what you did not take. It is what you have got I want pay for.”

j This letter was in reply to one from defendant of December 39, 1903, in which defendant wrote:

1 “ If it is true that the material cannot be inspected and tallied now, the only way that I know to handle the posts and poles that are still on the island would be to make a new contract for a specified amount of poles of certain lengths and sizes, to be delivered the first thing in the spring and to make.such payment on them as we might mutually agree upon. This, however, is only a suggestion, and I should be glad to hear from you upon it.”

*682This evidence certainly tended to sustain the defendant’s theory. The evidence upon this branch of the case was the same in case of the posts and ties that it was in case of the poles. If it was proper to leave the question to the jury in the one case, it was also in the other.

We think there was a conflict of evidence, and are therefore compelled to reverse the judgment, and order a new trial.