Assuming that the evidence clearly shows, as I think it does, that the flour in question was surplus flour, arising from the wheat delivered under the contract after the plaintiffs had received 196 pounds of superfine flour for every four bushels and fifteen pounds of wheat; the finding of the judge was erroneous and inconsistent with his previous decision: but if the evidence did not prove that fact, in his opinion, the finding was consistent with his opinion of the law of the case. If the defendants intended to set aside the finding, on the ground of its being against the evidence, or the weight of evidence, they should have moved the supreme court for a new trial on that ground upon a case made for that purpose. That question cannot be raised here on this appeal. The only question here, on the bill of exceptions is, whether the decision of the judge upon the question raised as to the rights of the parties under the contract was, or not, correct. And not whether his finding was right upon the facts proved.
The judge, in effect, decided that the contract between the plaintiffs and Christopher Willis, was not one of sale or exchange, but of bailment for manufacture; locatio operisfaciendi. And I am of opinion that he was correct in that construction. So far as I understand the argument, to show it one of sale or exchange and not of bailment, it rests chiefly, if not wholly, *Page 83 upon the absence of any express provision that the 196 pounds of superfine flour for every four bushels and fifteen pounds of wheat should be delivered, from the flour to be manufactured from the identical wheat delivered. But for what purpose did the plaintiffs agree to deliver their wheat to Willis at his mills? For sale, or exchange for flour? Clearly not. The answer is to be found expressed in the contract — "to be manufactured into flour," and to have in return "all the offals or feed," c. and a certain quantity of flour, as the product of the manufacture, which might or might not be the entire product, but depending perhaps upon contingencies. Did Willis intend to purchase or exchange flour for wheat? There is nothing either in the language of the contract or in the surrounding circumstances, which indicate it, but a contrary intention is plainly to be inferred as well from the circumstances as the language of the contract. The contract says: "which Willis agrees to do as follows," that is, to manufacture the wheat when delivered, and of the flour to be manufactured, to deliver the plaintiffs a specified quantity for each specified quantity of wheat, packed in barrels to be furnished by the plaintiffs, and all of the offals. In the absence of any express stipulation to the contrary, there is no doubt but that the plaintiffs would be entitled to the whole wheat in its manufactured condition, subject to the lien of Willis for a reasonable compensation for his labor and skill expended in its manufacture, or to the whole, less the customary part allowed to be taken as a compensation for the manufacture in the shape of toll. Take a common case, A. is a miller and has a flouring mill; B. sends his wheat to the mill to be manufactured into flour, no terms being agreed upon for which it shall be done; A. performs the work and takes a certain proportion for his compensation, say one-tenth, according to the custom of the trade. This would amount to an implied contract of bailment for manufacture, and not of sale or exchange; and although it was not expressly agreed between the parties, that the owner of the wheat should receive his proportion of flour and offals from the identical wheat delivered, yet I think no one will doubt but that would be implied. *Page 84
Take another case; suppose A. has wheat which he desires to procure to be manufactured into superfine flour, and agrees with B., who is a miller and has a mill, to manufacture it into such flour on delivery, and pack it into barrels to be furnished by A., for a specified money compensation, and all the flour which it should produce over a given quantity. No one will deny, but that the wheat delivered under the contract would be held by B. as a bailee for manufacture.
So, I apprehend, if one delivers wheat to another, who is a miller, at his mill, to be ground into flour, and the miller undertakes to do it, it would not make it any the less a contract of bailment, if instead of resting on the implied agreement to allow the miller to take the customary part as compensation by way of toll, or on an express agreement to pay a sum certain per barrel for the quantity of flour manufactured, in addition to allowing the miller to take a certain part of the flour manufactured as a compensation, the parties should agree that the owner of the wheat should receive in return, a specified quantity of flour for every given quantity of wheat delivered, and should pay a certain sum per barrel of flour to the miller as compensation for his skill and labor expended in the manufacture. The manifest inference from such an agreement would be, either that it was understood that the wheat, when manufactured, would not produce any greater quantity of flour than was agreed to be returned, or that if it would, the surplus, together with the sum to be paid, was intended as compensation for the work to be done.
The motive for providing by the contract for the quantity and quality of the flour that Willis should return as the product of the wheat when manufactured, may have been, to avoid all controversy which the parties may have apprehended might otherwise arise in regard to the performance of the contract by Willis; especially if it be a fact well understood by all who have any experience in the manufacture of wheat into flour, that there is little or no uniformity either in the quantity or quality of flour produced from a given quantity and quality of wheat ground by different millers and mills. *Page 85
But whatever the motive was, the express provision requiring Willis to return the offals and a specific quantity and quality of flour for a given quantity of good merchantable wheat, taken in connection with the other provisions of the contract, implies the exclusion of any claim or right of the plaintiffs to any greater quantity of flour, whatever the quantity produced was, and I think it is fairly implied that the surplus, if any, was to belong to Willis. This construction of the contract in question I think is supported by the principle decided in Norton v.Woodruff, (2 Comst. 153;) as also in Hurd v. West, (7Cowen, 752;) Smith v. Clark, (21 Wend. 84;) Pierce v.Schenck, (3 Hill, 28.) The judgment should therefore be affirmed.
RUGGLES, GARDINER, PRATT and TAYLOR, Js. were also of opinion that the contract was a bailment merely. They therefore voted for affirmance.