In cases of this kind the question is between a sale and a bailment; and as that is a point upon which the parties have not, in terms, declared their intention, either one way or the other, it must be settled by an inquiry concerning the nature and legal effect of the transaction. I think there was a sale, and not a bailment of the wheat: that the title passed to Willis on the delivery of the grain, and he became a debtor to the plaintiffs for the stipulated quantity of flour. The distinction which will be found to run through all the authorities on this subject, with the exception of two cases which have been overruled, is this; when the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed. But when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed: it is a sale. (Hurd v. West, 7 Cowen, 752, 756, note a; Smith v.Clark, 21 Wend. 83; Baker v. Woodruff, 2 Barb. 520; 2Comst. 153, S.C. in error, by the name of Norton v.Woodruff; Buffum v. Merry, *Page 86 3 Mason, 478; Ewing v. French, 1 Blackf. 353; 2 Kent, 589: Jones on Bail, 102, 64; Story on Bail. §§ 283, 439.) The rule is too well settled to be now drawn in question, and I think it decides the controversy between these parties; for although this case differs in words, it does not differ in principle from those which have been mentioned, where a delivery of property under a contract of this kind has been held to constitute a sale, and not a bailment. Willis was under no obligation to pay in flour made from the same wheat which he received; but he might perform his part of the contract by delivering flour of the proper quality and quantity made from any other wheat. The substance of the agreement — rejecting what is not material to the present inquiry — was, that the plaintiffs should deliver wheat, for which Willis should deliver flour and "offals" in return; and it was wholly unimportant from what particular wheat the flour and offals were made. The subordinate particulars — as the quality of the wheat and the flour, the proportion which the flour was to bear to the wheat, the mode of packing, who should furnish barrels, the warranty of inspection, and the amount to be paid by the plaintiffs in money — do not affect the nature of the transaction, or tend in any degree to prove that the flour was to be made from the particular wheat which the plaintiffs should deliver.
Some stress has been laid upon the words — "to be manufactured into flour, which the said Willis agrees to do;" but the whole force of the argument is broken by the additional words, "as follows" — "which the said Willis agrees to do as follows." Now what follows? Not one word about manufacturing that particular wheat into flour; but only a stipulation to pay for the wheat in flour. This shows plainly enough that the plaintiffs were not contracting for work and labor upon their materials; but for an exchange of wheat for flour. That was the legal effect of the agreement.
It appears from the case that Willis has delivered the whole quantity of flour in pursuance of the contract. Now suppose it should turn out that a part, or even all, of the flour was made from other wheat than that delivered by the plaintiffs, and that *Page 87 their wheat has not been manufactured at all, will any one say that they could for that reason re-take the wheat, or have an action of any kind against Willis? I presume not. It follows that Willis was at liberty to return flour without regard to the wheat from which it should be manufactured: and if such was the nature of the contract, it is fully settled upon authority, that there was no bailment, but a sale of the wheat. The title passed to Willis on the delivery of the grain; the property was at his risk of accidents; and he was a debtor for the stipulated quantity of flour.
Again: it is evident from the terms of the contract, when read with a knowledge of the business to which it relates, that Willis was to have the surplus wheat, if there should be any, after returning to the plaintiffs one barrel of flour for every four and one-fourth bushels of wheat which he should receive. Such I understand to be the opinion of most of my brethren. Now, why was he to have the surplus grain? Not because there was any such stipulation, in terms, between the parties; but because the legal effect of the transaction was to make Willis a purchaser of the grain, and a debtor for the price. And it is as a purchaser of the whole, and in no other way, that he acquired a title to the surplus wheat.
It has been said, that though Willis was to have the surplus wheat, the title to it did not pass until he had delivered the stipulated quantity of flour. This argument goes upon the theory that there was no sale at the time the wheat was delivered, which theory has, I trust, been shown to be false. But further; if there was no sale at the time of the delivery, there is nothing in the contract from which it can be affirmed that there ever has been a sale, either of the whole, or any part of the grain. The parties did not agree that the title should pass when Willis had delivered the flour; and for aught I can see the plaintiffs own the wheat still. The only theory which can give Willis a title to the surplus wheat, is that which gives him a title to the whole, by holding that there was a sale, instead of a bailment of the grain.
If decisions are made to turn upon mere verbal distinctions *Page 88 where there is no difference in principle, we shall soon have a multitude of cases, but no general rules.
I am of opinion that the judgment is erroneous, and should be reversed.