The jury found that the transaction between plaintiffs and the Parks brothers was without fraud as to creditors. This leads to the inquiry: What effect is to be given the written contract between plaintiffs and the Parks brothers in reference -to the passing of title of the stock of hardware covered by it ? Whether or not the title to the goods sold vested in the vendees under circumstances like these depends upon the intention of the parties. This fact must be ascertained from the terms of the agreement, if the phraseology employed clearly expresses it; but, if it cannot be so ascertained, then resort must be had to the conduct of the parties as explained by commonly accepted usages in dealing with the subject-matter. As stated in State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359:

“The ultimate rule to be deduced from all the authorities is, however, the reasonable one, namely, that when neither the statute of frauds nor rights of creditors are involved, the title passes when the parties intend it to,” and “that certain facts, or the absence of others, are held to confirm or refute the inference, as a fact, of an intent that title pass at any given state of the transaction;” citing a number of cases.

The court held that the contract on its face was not sufficiently explicit in its terms to declare the intention of the parties as to when title to the goods was to pass, and therefore resorted to proof of the facts and circumstances of the transaction to ascertain the intent of the parties upon this *602subject. This ruling is correct, since tbe contract fails to-disclose tbe intent when title to tbe stock of hardware should pass. In submitting this question for determination to the-jury, tbe court instructed them as follows:

“When anything is to be done by one who sells, or by the-mutual concurrence of both parties, for ascertaining the price of goods, as by weighing, testing, or measuring them, or there-is something indicating an intention to postpone the transfer of the property until the fulfillment of any specific conditions,, the performance of such conditions is presumed to be a condition precedent to the transfer of the title to the property, and in such case the title does not pass until such conditions-have been performed

This instruction amounts-to a direction that, if any of the conditions enumerated in the instruction were found to exist, then it is conckbsively presumed that title did not pass until the conditions have been performed. This is not the legal effect of proof of such conditions. Proof of them is received] and submitted to ascertain whether the parties intended that title should pass when the agreement to sell was made, or at' some subsequent stage of the transaction. The instruction-was evidently framed with a view to incorporating the rule-expressed in the decision of Smith v. Wisconsin I. Co. 114 Wis. 151, 89 N. W. 829, wherein it is stated: “The performance of these conditions is presumed to be a condition-precedent to the transfer of the property.” These terms should not be read to declare that the existence of such conditions conclusively prove that title did not pass until they had been performed.

Another exception is urged to the following instruction r “In answering this question [6] you must weigh and consider much, if not most, of the testimony that has been introduced” — as piisleading to the jury in permitting them to arbitrarily reject testimony which might be material. The instruction may not be so indefinite as to constitute reversible error, but we deem it best to call attention to it, so that the *603uncertainty of its application to tbe evidence may be corrected. Since a new trial must be ordered, we do not deem it necessary to discuss other exceptions argued, because they will probably not arise upon another trial.

The case seems to have been tried and finally decided upon the theory that a determination of the question of fraud, and when title to this stock of hardware passed, decided all the-issues between the parties. We are not advised by anything in the record whether counsel for the respective parties-brought to the court’s attention or whether the court passed upon the right of the defendants to seize this property for the-benefit of the creditors of the Parks brothers, and take it from those in possession, while the invoice was being taken with a view to carrying out the contract o.f sale. If plaintiffs-were in possession, -either solely or jointly with the Parks-brothers, the question as to what rights inhere in such possession may necessarily require determination to make a judgment conclusive as to the rights of all interested parties.

By the Court. — Judgment is reversed, and the cause is-remanded for a new trial.