It is not easy to see how, upon the theory adopted by the judge at the circuit, he was led to the conclusion at which he arrived. What he in fact decided is expressed somewhat obscurely in the bill of exceptions, but if I have correctly understood his construction of the contract, it was, that upon the delivery of the wheat to the defendants, they acquired no title to it, but were entitled to so much of the flour as remained, after delivering to the plaintiff the quantity specified in the contract. He accordingly held that the defendants, to establish their title to the flour in question, must show that it was surplus flour, remaining after the delivery of 196 pounds to the plaintiffs for every four bushels and fifteen pounds of wheat received. This fact appears to have been fully proved, and yet the decision was in favor of the plaintiffs. This, however, was a question of fact, and though the learned justice may have erred in its decision, such error can not be corrected in an appellate court. It is quite probable that if the cause had been tried with a jury, there might have been found in the charge of the court tenable ground of exception. But in the mode of trial adopted by the parties, the defendants are deprived of this advantage. The only question therefore, for this court to consider, relates to the other branch of the decision at the circuit, whereby it was held that the delivery of the wheat under the contract, did not vest the title in the defendants.
However this question may be determined all must agree, I think, that the case stands hard by the line which separates between bailments and sales. It certainly presents some of theindicia of each of those classes; and though judges will agree upon the principles which are to govern the decision, they may well differ in the application of those principles to this case. By the terms of the contract, the wheat was to be delivered for the purpose of being manufactured into flour. This the defendants *Page 89 agreed to do. It was also agreed that the plaintiffs should have all the offals or feed, and the defendants were to store the same until sold. These provisions seem to favor the construction adopted at the circuit. On the other hand, the defendants were to deliver to the plaintiffs a specified quantity of flour for a specified quantity of wheat. They were to pack the flour in barrels to be furnished by the plaintiffs, and were to guarantee its inspection as superfine flour. Upon the performance of the contract on their part, the defendants were to receive sixteen cents per barrel, and two cents more upon a certain contingency. These provisions, though not inconsistent with the idea of a bailment, seem rather to favor the opposite construction.
Was it the intention of the parties that the identical wheat delivered by the plaintiffs should be returned to them in the shape of flour? If it was, the plaintiffs never ceased to be the owner of the wheat. Would the defendants' undertaking be discharged by the delivery of the quantity of flour specified, of the specified quality, whether such flour were made from the wheat received of the plaintiffs, or any other wheat? If so, then it was a contract of exchange, and when the wheat was delivered to the defendants, they became its owners. This is the test by which it is to be decided whether the contract was a bailment or a sale.
The inclination of my own mind is to the latter alternative. The parties undoubtedly contemplated the manufacture of the wheat into flour, and perhaps I ought to add, that the same flour made from the wheat delivered by the plaintiffs, would be delivered to the plaintiffs. But did the defendants bind themselves to do this? Could the plaintiffs have objected to any superfine flour the defendants had seen fit to deliver to them, on the ground that it had been made of other wheat than their own? Suppose the plaintiffs had failed to furnish wheat enough to stock the defendants' mill, and they had made other similar contracts with other persons. Would they have been bound to keep the wheat received under such contracts separate from that received under the plaintiffs' contract? If the defendants had received other wheat, and from all the wheat *Page 90 received at the mill, had made one common stock for its supply, would they have violated their contract with the plaintiffs? I think not. I think the contract would have been satisfied, on the part of the defendants, by the delivery of the requisite quantity of superfine flour, such as would bear inspection, whether made from the plaintiffs' or any other wheat. Whether the wheat they delivered made more or less than the stipulated quantity of flour, or whether the flour they received was actually made from that or other wheat, were questions which did not concern them. They had the thing which the contract authorized them to demand. It was all they stipulated for. Having received it, they were bound to be satisfied. Besides the flour, the plaintiffs were to have "all the offals or feed," c. This clause, as I have already said, seems to point to the flouring of the wheat for the plaintiffs. But in view of the whole transaction, I think this provision is entirely satisfied by giving the plaintiffs the offal or feed made in the manufacture of the requisite quantity of flour for the plaintiffs. Nor do I think that the fact that the plaintiffs, in addition to the four bushels and fifteen pounds of wheat, were also to pay the defendants sixteen cents for each barrel of flour received from them, should affect the construction to be given to the contract. It is no uncommon thing in contracts for the exchange of property to equalize the value, by the payment of the difference in money. This seems to me to be nothing more. In legal effect, it could make no difference whether the price the defendants were to receive for their flour should be paid wholly in wheat, or partly in wheat and partly in money.
This construction of the contract will be found best to harmonize with the general current of decisions in analogous cases. These cases are collected, and the doctrine they sustain is well stated, in a very sensible opinion by Mr. Justice Welles, in Baker v. Woodruff, (2 Barb. 520, since affirmed uponappeal.) The only cases which favor the opposite construction, are Seymour v. Brown, (19 John. 44,) and Slaughter v.Green, (1 Rand. 3.) These cases have been so often and so decidedly disapproved, that they are no longer to be regarded as authorities. *Page 91
My opinion is that there was nothing in the agreement between the parties, which required the defendants to return the samewheat they received in the shape of flour, and therefore according to the settled doctrine in such cases, the contract was in effect an exchange, and not a bailment. If so, it follows that the decision at the circuit, that "the title of the wheat did not become vested in or pass to the defendants by the delivery under the contract, but remained in the plaintiffs," was erroneous.
Judgment affirmed.