Colt, J.

The defendant claims title to the property in dispute, under an order given for four car loads of corn, to David Schwartz & Company of Cincinnati, which the latter undertook to fill. He produces the written correspondence with them, and relies upon the transactions which followed, to prove delivery. Three car loads were sent at intervals of time, according to orders, and the drafts of David Schwartz & Company, drawn against them, were paid by the defendant as they were presented. The car load in question, being the last of the four, arrived in Springfield, and was taken by him upon payment of freight and charges of transportation, but without paying the draft drawn against it.

The plaintiffs claim title by virtue of the discount of a draft of David Schwartz & Company upon the defendant, which was presented with a bill of lading annexed, for the car load of corn in question, marked and consigned to the defendant at Spring* field.

*295To sustain the ruling of the court below, it must appear as matter of law, upon the evidence reported, that the defendant did not first acquire title from the original owners good against the plaintiffs, and if he did not, that then the plaintiffs did acquire sufficient property to maintain this action in their own name.

In all completed contracts of sale, property in the goods sold passes to the buyer, although they may not have come to his actual possession. An unconditional sale of specific chattels passes the title at once, and the buyer takes the risk of loss, and has the right to immediate possession. When anything remains to be done, in the way of specifically appropriating the goods sold to the contract, the agreement is executory and the property does not pass. When, from the nature of the agreement, the vendor is to make the appropriation, then, as soon as any act is done by him, identifying the property, and it is set apart with the intention unconditionally to apply it in fulfilment of the contract, the title vests, and the sale is complete. Thus the delivery to the buyer or his agent, or to a common carrier, consigned to him, whether a bill of lading is taken or not, if there is nothing in the circumstances to control the effect of the transaction, will be sufficient. If the bill of lading, or other written evidence'of the delivery to the carrier, be taken in the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to transfer an absolute title to the vendee. But the vendor may retain his hold upon the goods to secure payment of the price, although he puts them in course of transportation to the place of destination, by delivery to a carrier. The appropriation which he then makes is said to be provisional or conditional. He may take the bill of lading or carrier’s receipt, in his own or some agent’s name, to be transferred on payment of the price, by his own or his agent’s indorsement to the purchaser, and in all cases when he manifests an intention to retain this jus disponendi, the property will not pass to the vendee. Practically the difficulty is to ascertain, when the evidence is meagre or equivocal, what the real intention &f the parties was at the time. It is properly a question *296of fact for the jury, under proper instructions, and must be submitted to them, unless it is plain as matter of law that the evi« dence will justify a finding but one way. Allen v. Williams, 12 Pick. 297. Stanton v. Eager, 16 Pick. 473. Stevens v. Boston & Worcester Railroad Co. 8 Gray, 262. Coggill v. Hartford & New Haven Railroad Co. 3 Gray, 545. Moakes v. Nicolson, 19 C. B. (N. S.) 290. Godts v. Rose, 17 C. B. 229. Tregelles v. Sewell, 7 H. & N. 574. Benjamin on Sales, 245.

It is plain, in the case at bar, that if the title vested in the lefendant, by the delivery to the carrier, there would be an end jf the plaintiffs’ case, for the title of the bank was subsequently acquired from David Schwartz & Company, and the court below must therefore have held, as matter of law, that the title to the ram did not vest by the delivery in the defendant. This question we think should have been submitted to the jury. It is, as we have seen, a question of intention, to be determined by a consideration of the correspondence, the course of dealing, and the facts connected with the delivery, the whole presenting several items of evidence, some of which are not wholly consistent with the theory of either party. It is the appropriate province of the jury to pass upon them.

The defendant further insists that, even if the title did not in fact vest in him, yet the plaintiffs have shown no title to" maintain this action in their own name. And the court are of opinion that this question also should have been submitted to the jury. If the title remained in David Schwartz & Company, after the delivery to the carrier, without doubt they might pledge or transfer it as they chose. Such transfer might have been made by an indorsement of. a bill of lading taken in the name of the consignor. That is one mode, certainly the most usual mode, of symbolical delivery, when goods are in course of transportation. It is not the only mode. It may be by correspondence; by an order for delivery; by bill of sale; and, as between the parties, by any agreement upon good consideration, by which the one takes and the other gives a title.

The facts stated in this case are not sufficiently distinct and decisive to make it clear, as a matter of law, that the transactior *297between David Schwartz & Company and the plaintiffs was an actual transfer of property to them by way of pledge or security. The draft, in the ordinary course of the mails, would be presented for payment before the arrival of the property upon which it was drawn, and David Schwartz & Company would have been notified, by telegraph or otherwise, of its nonpayment, in time to prevent the property from coming to the possession of the defendant. It is argued that the facts are equally consistent with a purpose to constitute the bank only an agent to deliver the bill of lading to the defendant, to whom the property by its terms was consigned, on payment of the draft; and that the right of action, if any, for the alleged conversion is still in David Schwartz & Company. In the case of Stone v. Swift, 4 Pick. 389, it was held that a bill of lading, sent unindorsed in a letter, containing no words of transfer, did not give the party receiving it a claim to the property. Prince v. Boston & Lowell Railroad Co. 101 Mass. 542.

Upon the rule of damages in the event of a recovery by the plaintiffs, see Dresser Manufacturing Co. v. Waterston, 3 Met. 9; Pierce v. Benjamin, 14 Pick. 356; Kaley v. Shed, 10 Met. 317; Adams v. O’Connor, 100 Mass. 515.

Exceptions sustained