By the Court,
Bronson, J.The contract between the plaintiffs and Hubbard was, in effect, one of sale—not of bailment. The property in the wheat passed from the plaintiffs at the time it was delivered at the mill, and Hubbard became a debtor, and was bound to pay for the grain in flour, of the specified description and quantity. There was no agreement or understanding, that the whéat delivered by the plaintiffs should be kept separate from other grain, or that this identical wheat should be returned in the form of flour. Hubbard was only to deliver flour of a particular quality, and it was wholly unimportant whether it was manufactured from this or other grain. Jones on Bail. 102, 64. *85A different doctrine was laid down in Seymour v. Brown, 19 Johns. R. 44; but the authority of that case has often been questioned, 2 Kent, 589; Story on Bail. 193-4, 285; Buffum v. Merry, 3 Mason, 478; and the decision was virtually overruled in Hurd v. West, 7 Cow. 752, and see p. 756, note. The case of Slaughter v. Green, 1 Rand. (Va.) R. 3, is much like Seymour v. Brown. They were both hard cases, and have made bad precedents.
There was, I think, no evidence which would authorize the jury to find that the flour in question had been delivered by Hubbard to the plaintiffs. There certainly was no direct evidence of that fact, and Hubbard himself testified expressly that there had been no delivery. The proof given by the plaintiffs of what Hubbard had said to others about the flour in the mill, was not necessarily inconsistent with his testimony.
But if there had been a delivery, so that the property in the flour passed to the plaintiffs, they still labor under a difficulty in relation to"the form of the remedy. Notwithstanding the transfer, the property was left in the possession and under the care of Hubbard. * He was a bailee of the goods, and as such would have been answerable to the plaintiffs for any loss happening through gross negligence on his part. The defendant took the flour on delivery from the bailee, who had a special property in it. Such a taking is not tortious. Marshall v. Davis, 1 Wend. 109, Earll v. Camp, 16 Wend. 570. The plaintiffs should have counted on the detention, not on the taking of the goods. Randall v. Cook, 17 Wend. 57. 10 Wend. 629. There must be a new trial.
New trial granted.