Whether the contract agreement is held to be a sale, or a bargain and sale, as it was early called, or whether it was merely an agreement to sell, depends upon the intention of the parties to the contract. There can ordinarily be no difficulty in determining what the agreement was, when the intention of the parties is clearly shown by their negotiations and acts, the seller divesting himself of all title to the goods and the buyer assuming full control with all attending liabilities. If the intention is manifested in no uncertain way, it will control.2 What was the intention of the parties, is one of fact for the jury, acting under instructions from the Court. Where the contract is in writing, or the terms are not in dispute, it is the province of the court to construe its meaning. The intention of the parties may be shown by the circumstances of the case, or by the express declarations of the parties made at the time of the sale. Where the goods are actually delivered, that shows the intention of the parties to complete the sale, as indicative of the intent to transfer the property absolutely.

2 Callaghan vs. Meyers, 89 I11., 570.

Justice Cooley said: "That the question whether a sale is completed, or only executory, is usually one to be determined from the intent of the parties, as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that where the goods sold are designated, that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery or that the goods should be in a deliverable condition, or that the quantity or quality, when the price depends upon either should be determined, these being circumstances indicating intent, but are not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods are ascertained, and they appear to be in a state in which they may be and ought to be accepted." 3