Mr. Chiee Justice Wolverton,
after stating the facts in the foregoing language, delivered the opinion.
1. The question for our determination is whether there was sufficient evidence to go to the jury from which they might infer that the plaintiff was the owner of the property which he seeks to recover. In order to establish his title thereto, he introduced the instrument of writing hereinbefore set out, and the testimony of himself, Martin, and Shaw. The instrument appears on its face, in one respect, to be a mere bill of sale, while there is couched in its terms an apparent ambiguity, arising from the provision which requires the grain “to be delivered at Fred Haines’ warehouse, in the Town of Harney, Oregon, at time of threshing.” In order to determine the legal effect of this instrument, it is necessary to take it by its four corners, and to ascertain therefrom, if possible, the purpose and intent of the parties at the time of its execution ; and, if that can be so ascertained, it is controlling: Tiedeman, Sales, §83. In its formal parts, it purports to be a bill of sale, and recites a delivery of the property therein described. If nothing more had been added, the intention of the parties to transfer the title of the property by delivery of the instrument would have been obvious and unmistakable. But the clause heretofore referred to being inserted renders it, in a manner, ambiguous. We think, however, the true intendment, as gathered from the instrument itself, is that the title to the property should pass under it, but that the possession should remain with the grantor, and that he should thereafter, or when the crop had been threshed, deliver the same to Haines, and that the delivery referred to in said clause has reference merely to the delivery of possession, or the manual transportation of the grain from the place where threshed to the warehouse of the *579plaintiff, and there deposited with him. Hence, if such instrument was'in fact delivered by Martin to the plaintiff at the time of its execution, it was effective to transfer title to the property : 4 Am. & Eng. Enc. Law (2 ed.), 558. As fraud lias been set up as a defense, by the allegation that the bill of sale was executed for the purpose of defrauding the creditors of the said Martin, it was necessary, of course, to show the actual execution and delivery of the instrument, in good faith and for a valuable consideration, at a time prior to the attachment, as the sale was presumptively fraudulent” possession having been retained by the vendor. It was proper, therefore, for the alleged bill of sale to go to the jury as evidence of the plaintiff’s title, and the legal effect of the instrument itself should have been declared by the court for their direction.
2. But, conceding the instrument to be so ambiguous in its terms as to require evidence of the attendant and surrounding circumstances, and aliunde as to the purpose and intendment of the parties, there is unquestionably enough in the record from which the jury could legitimately infer and conclude that it was understood at the time of the execution and delivery thereof that the title to the property should also pass from the said Martin to the plaintiff. The plaintiff testified that he bought the property at that timo ; that Martin sold it to him, and made him a bill of sale of it. While the plaintiff has said that the property was to be delivered to him at his warehouse, yet he says also that the title had already passed, and in fact that it was so considered by him and Martin. Clearly, the plaintiff produced sufficient evidence to entitle him to go to the jury upon the bona fides of the supposed sale by Martin to the plaintiff, and the question of title to the property sued for, and there was error in sustaining the motion for nonsuit. The judg*580ment below must be reversed, and the cause remanded for such further proceedings as may be deemed advisable, not inconsistent with this opinion. Reversed.
Mr. Justice Moore
(dissenting).
Believing that the trial court could not say from an inspection of the memorandum executed by Martin to Haines that it was intended that the title to the grain should pass by the delivery of the instrument, and that such intention cannot reasonably be inferred from the testimony, I am relucantly compelled to dissent from the conclusion reached by my associates. The words “sold and delivered,” as used in the writing, ordinarily import a consummated contract, and if they were not qualified by the subsequent clause, “to be delivered at Fred Haines’ warehouse, in the Town of Harney, Oregon, at the time of threshing,” would undoubtedly be sufficient, in connection with the context, to evidence a transfer of the title: Memory v. Niepert, 131 Ill. 623 (23 N. E. 431). True, the writing does not state who was to deliver the grain ; but, even if the words “delivered at” be construed as synonymous with “hauled to,” it is fairly inferable, from an inspection of the writing, that Martin was to do this, otherwise the place of delivery would have been immaterial to him. This construction would repel the idea that the contract was wholly executed. It will thus be seen that this qualifying clause, tending to show that a future delivery by the vendor was contemplated, rendered the instrument ambiguous, and made it impossible for the court to construe it, in view of which parol testimony was admissible to explain the terms agreed upon : American Contract Co.v. Bullen Bridge Co., 29 Or. 549 (46 Pac. 138). The only question involved in this obscurity, however, is the intention of the parties as to whether *581the title should pass by the delivery of the instrument: Hamilton v. Gordon, 22 Or. 557 (30 Pac. 495); Bangs v. Friezen, 36 Minn. 423 (32 N. W. 173).
Plaintiff, appearing as a witness in his own behalf, states that the grain was delivered, and he became the owner thereof, on the day the bill of sale was executed ; but it(was agreed that Martin should receive credit on his note and store account for its market value when it was hauled to the warehouse. Martin testified that at plaintiff’s request he superintended the threshing, and in answer to the question, “But in the event that the grain had been destroyed before it was threshed, for instance, or after it was threshed, before you delivered it, at the time you were to determine the price, whose grain would it have been?” said, “His, after I had the note.” That the parties did not intend the title should pass until the grain was paid for is evident from Martin’s testimony, and there is no evidence in the bill of exceptions tending to show a different intention, unless it be Haines’ statement that he became the owner of the grain the day the instrument was executed. But this was a question which the jury, in view of the ambiguity of the instrument, was called upon to decide from facts which should have been, but were not, proved at the trial. The intention was a question of fact, susceptible of proof; whether the title passed was a question of law; and, since an inference can only be founded upon a fact legally proved (Hill’s Ann. Laws, § 773), it is quite evident that no fair or legitimate inference of the intention can be deduced from Haines’ opinion in relation to a question of law. The grain was growing when the writing was executed, and therefore it was impossible for Haines to take manual possession ; and, this being so, no intendment can be extracted from his testimony by which the jury could conclude that he and Martin agreed at the time the *582writing was executed that the title should pass with the delivery of the instrument. “Whenever a motion for a nonsuit is made,” says Mr. Justice Lord, in Herbert v. Dufur, 23 Or. 462 (32 Pac. 3,02), “every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of the plaintiff.” To the same effect see Tippin v. Ward, 5 Or. Southwell v. Beezley, 5 Or. 458; Grant v. Baker, 12 Or. 329 (7 Pac. 318); Hedin v. Suburban Ry. Co., 26 Or. 155 (37 Pac. 540); Wallace v. Suburban Ry. Co., 26 Or. 174 (25 L. R. A. 663, 37 Pac. 477); Vanbebber v. Plunkett, 26 Or. 562 (27 L. R. A. 811, 38 Pac. 707). Giving to these decisions the liberal construction to which they are entitled, it would nevertheless seem that the instrument in question was not a bill of sale, and that, in view of plaintiff’s failure to introduce testimony tending to show the intention of the parties thereto with reference to the transfer of the title, it would seem to follow that no error was committed by the trial court in granting the non-suit ; and the judgment, in my opinion, ought to be affirmed. Reversed;