By the Court,
Bronson, JIt is unnecessary to go at large into the extensive dealings between these parties. The principal part of the account relates to the flour which the defendants manufactured at Phelps, and consigned to the plaintiffs for sale, and the drafts which the defendants made on the plaintiffs on account of that business. Although *100the sour flour and the drafts connected with it went into the general account, it was in most respects an independent transaction. Nor is it important to notice the fact that a portion of the flour which went to Troy te be re-manufactured came originally from the mill at Phelps, and soured while in the hands of the plaintiffs. The suit relates wholly to other flour—such as the plaintiffs had in their hands upon consignment from third persons, and such as they purchased in the market for the purpose of filling the defendants’ order for sour flour to be ground over at Troy. As to that flour, I have been unable to read the testimony without coming to the conclusion that the title passed to the defendants as purchasers. Mr. Wells, the plaintiffs’ clerk, speaks of it from the beginning to the end of his testimony, with a single qualification, as a purchase and sale of the flour; and all the documentary evidence, of which there is a great mass, goes to confirm his statement. Mr, Wells says the defendants came to the plaintiffs to buy a quantity of sour flour, and the plaintiffs agreed to sell what they had on hand, and to purchase in the market enough to make aup the balance. The agreement was executed, and the wheat sent to the defendants at Troy, and charged to their account. There was a complete sale and delivery of the property. It was not a conditional, but an absolute sale. Now let us see what was the qualification spoken of by the witness. He says, it was understood that the flour was to be in the possession of the plaintiffs only, and shipped to Troy to be ground over and returned to the plaintiffs. The witness can not give the words which passed between the parties; and his understanding of the matter involves something which to my mind appears very much like a contradiction. I can not comprehend how the property could be sold and delivered to the defendants, and yet remain in possession of the plaintiffs. The parties may very well have agreed that the new flour should be sent to the plaintiffs for sale, in the same way that the plaintiffs held other flour of the defendants; but that would not change the title, or give the plaintiffs even a special property in the flour, until it had in fact been sent to them. When the parties commenced their *101earlier transactions there was undoubtedly an understanding that the plaintiffs should accept drafts, and that the defendants should consign flour front their mills at Phelps to meet the acceptances ; but this could not affect the title to the flour which the defendants manufactured, until it was actually consigned to the plaintiffs. And the case is substantially the same of the flour which was to be re-manufactured at Troy. If the defendants were wrong in not grinding over and returning all of the damaged flour, they are chargeable with the breach of an executory agreement; but that could not change the title to the property. The fact that the defendants drew on the plaintiffs for funds to pay freight, and to purchase wheat to be used in re-manufacturing the flour, proves nothing. The defendants raised funds in the same way to purchase wheat to be manufactured at Phelps. But the wheat purchased at both places, and the flour made from it belonged to the defendants, until they performed their agreement by consigning the flour to the plaintiffs.
If the witness means more than that the defendants agreed to return the new flour to the plaintiffs to be held, as they held the western flour, to meet their acceptances for the defendants,. the evidence is open to the objection that it contradicts the written evidence of title, and therefore was not admissible. The plaintiffs not only charged the defendants with the flour as upon a sale, and rendered accounts claiming to be paid the balance, but they delivered bills and an invoice of the flour as so much property which they had sold to the defendants, and shipped and consigned the flour to the agent of the defendants at Troy. In the letters of advice which accompanied the bills of lading, the plaintiffs spoke of the flour as belonging to the defendants; and in the whole mass of written evidence, there is not a single word which tends to the conclusion that the transaction came any thing short of an absolute sale of the property.
The plaintiffs say it is improbable that they would make an absolute sale on credit to so large an amount, when they were already under heavy acceptances for the defendants. Anticipating such an argument, the defendants offered to *102prove on the trial that at the time of the sale they were in good credit as merchants and business men, and reputed to be wealthy; and that they still continued to enjoy that reputation. After objecting to that evidence and having it excluded, the plaintiffs can not suppose that much importance will be attached to the argument which is based upon the supposed improbability of their making an absolute sale. And besides, probabilities are of no great force when weighed against full written evidence of title.
It is clear that this was not a bailment of the flour. Indeed, the plaintiffs have made no point that it was-a bailment. They say, a factor has a lien for advances, and they were in advance to the defendants. But what has the law of principal and factor to do with this question ? The plaintiffs may have had a lien as factors upon all the flour which the defendants sent them either from Phelps or Troy. But they were not factors in selling this flour to the defendants. The only relation between the parties in this transaction Avas that of vendors and purchasers. The relation of principal and agent could not arise until the flour Avas returned. It is admitted that the. defendants Avere the general owners, but insisted that the plaintiffs had a special property in the flour. It is true, that the defendants are general owners; but how did they become such ? The only ansAver is, by a sale and purchase. The plaintiffs first owned this flour, and the title could only pass to the defendants by a sale. And if there was a sale and delivery to the defendants, the plaintiffs no longer had any property, either general or special, in the flour. They are obliged to resort to the absurd understanding of the witness, that notwithstanding the sale and delivery, the possession was to be with the plaintiffs. That was impossible from the nature of the case. The witness dabs not say that the plaintiffs were to have a lien upon the flour; and it is difficult to suppose that any such thing was intended by the parties. The defendants were to mix and grind over the flour Avith fresh ' wheat, in the.'proportions of about one to four'. Hoav could the plaintiffs trace the flour after it had been thus mingled with other. property? The thing would be impossible. The *103plaintiffs may have had in their minds some vague notion about preserving a right to follow and re-take the property; but they did not adopt the proper means to secure that end. There can be no such thing as a lien in the vendor where the property is delivered to the vendee. There may be a conditional sale j or to speak more properly, there may be an executory agreement to sell provided certain conditions are performed, and the delivery of the property under such an agreement will not prevent the owner from re-taking the goods if the conditions are not performed. (Strong v. Taylor, 2 Hill, 326.) But there was no such agreement or condition in this case. The sale and delivery were absolute, and the vendors had no right to follow the flour. I see no principle which upon this action can be maintained.
New trial granted.