¶1The defendants insist that the plaintiff cannot recover on book against them for the third item in his account for the basswood lumber, for want of such an acceptance by them as passed the property from the plaintiff to them.
¶2*147It has been decided by this court in the case of Latham v. Lewis, and in one or two subsequent cases, none of which are yet reported, that where articles are manufactured upon a contract to be delivered at a future day, and when completed are offered to the party ordering them, and he wrongfully refuses to receive them, that the property does not thereby pass, so that an action for goods sold and delivered would lie, nor can they be charged on book and the price recovered in that form, but the only remedy is by an action for damages for refusing to accept.
¶3In other words the title does not pass without a delivery and acceptance. The reason of this is well stated by Aldis, J., in the case of Rider v. Kelly et al., 32 Vt. 268 : “ The vendee was entitled to examine them, and use his judgment in determining whether they came within the contract. They would not become his property against his consent; though if he wrongfully refused to accept them he would be liable in damages. He was not bound by the offer of delivery to accept them and treat them as his own. When the contract so plainly points for something further to be done by the purchaser, some further right or privilege to be exercised before actual delivery takes place, and actual possession and title change, then the possession and title must be held to remain in the seller, and he must take charge of* the property and keep the same or sell it as he sees fit.”
¶4We are entirely satisfied with the soundness of the decisions on this subject, and have no disposition to recede from them. But is the principle decided in them conclusive against the plaintiff’s right to recover this item, as the defendants claim? The defendants contracted with the plaintiff for all the lumber on twelve acres of land, to be sawed, and delivered upon the railroad premises of the defendants at Northfield.
¶5The lumber was all sawed according to directions given by the defendants’ agent, and was drawn and delivered by the plaintiff upon the defendants’ premises, at a place designated by their agent.
¶6There was and is no complaint but that the lumber in every respect was such as the plaintiff contracted to deliver. It was delivered into the possession of the defendants as the contract stipulated, and was placed where their agent directed. The defendants actually *148used all the lumber purchased of the plaintiff except the basswood named in this item.
¶7Upon these uncontroverted facts is there any question but that the title passed to the defendants, at least if the plaintiff so elected ?
¶8Suppose after the lumber had been thus delivered, a creditor of the plaintiff had attached it as the property of the plaintiff ?
¶9Or that after such delivery the lumber had been consumed by fire, or otherwise destroyed, would it have been the plaintiff’s or defendants’ loss?
¶10The case of Hunt v. Thurman & Martin, 15 Vt. 336, decides the last of these questions, and determines that in such case the property had passed to the defendants, and the loss would be theirs. See cases cited by court and counsel in the case referred to.
¶11The fact that the lumber had not been measured, and that a dispute arose between the parties, as to the quantity, and proper rule of measurement, did not affect the question.
¶12The contract for the lumber was entire, and the actual acceptance and use of a part may well be treated as an acceptance of the whole, as was held in the cases of Blish et al. v. Granger, 6 Vt. 340, and Carpenter v. Dole, 13 Vt. 578. The measurement claimed by the plaintiff was according to the custom of the place, by which the defendants should be held to pay.
¶13Judgment affirmed.