Dissenting. I cannot exactly accede to the decision, that has just been pronounced; and I may be permitted shortly to state the grounds of my dissent. It is to be borne in mind, that all, which the case finds, is, that Ford sold to the defendant Mower five cases of the cloth manufactured from the wool, which went into the possession of Ford under his contract with the plaintiff, — Mower knowing, at. the time of the sale, that the five cases of cloth were manufactured from the Buekmaster wool; and the recovery was had against both defendants, for the full value of the entire five cases; whereas I think it should have been limited to what I conceive to be Buckmaster’s interest in it, that is, to the value of the wool used in the manufacture of the five cases of cloth, at forty four cents a pound.
The case does not show, that Ford had at any other time appropriated to his own use any other portion of the wool, or of the cloth manufactured from it; and we should not presume him guilty of a tort, any farther than the case shows. If the plaintiff claimed to recover beyond his interest in the wool used in the manufacture of the five cases, upon the ground that Ford had injured him in appropriating other cloth to his exclusive use, the burden of proof must have been, I think, on him. A party is never to be charged with the consequences of a tortious act, simply by a presumption against him. The presumption should be in his favor.
The two first provisions in this contract, that is, that Buekmaster is to furnish and deliver to Ford a giv.en quantity of wool to manu*213facture, and the agreement of Ford to manufacture it, would make the parties tenants in common in the cloth, when manufactured, if there was nothing more in it; and this, I think, must be conceded by every one. I do not think the subsequent provisions in the agreement change the relation of the parties, in regard to their ultimate rights. They regulate, in my view, the principles, upon which this community of interest was to be settled between them, giving at the same time some farther rights to Buckmaster, than what he could have simply as a tenant in common. I think, taking the whole contract together, it was the intention of the parties, that Buckmaster’s interest in the cloth should be absolute, to the extent of the value of his wool at the price stipulated, — as it obviously would be, under its two first provisions; and that, by the subsequent provisions, Buckmaster has simply a lien, or a special property in the residue of the cloth manufactured by Ford, as a security for his wool, leaving the general property in Ford. This construction does justice t'o both parties, and gives operation to the whole contract; and it is all that Buckmaster should ask.
That this is the true construction I think is manifest. The cloth, when manufactured, was at the mutual risk of both parties ; and, if consumed by fire, or lost through the insolvency of Buckmaster’s consignee, Ford could have no remedy, unless Buckmaster had been guilty of negligence. Buckmaster could in no event be made a debtor to Ford for the expenses of the manufacture; and Ford’s indemnity was alone in the cloth, which, by the terms of the contract, he had given to Buckmaster the exclusive right of controlling and sending to market. So far as Ford had any interest in the cloth, Buckmaster became his bailee, or trustee, and when he was paid from the sales of the cloth, to the extent of his interest in it, he held the residue of the avails in trust for Ford; and whatever remained was the measure of Ford’s interest in the cloth. For such sum Buckmaster would be liable to Ford, upon the settlement of their community of interest; and not as a debtor for the manufacture of the cloth.
As there is nothing in the case to show, that Ford has in any way interfered with the rights of Buckmaster under the contract, except in the sale of the five cases of cloth now in controversy, I think, the plaintiff’s recovery should be confined to the extent of *214the injury he has sustained; and that is measured by the amount of wool used in the manufacture of the five cases. It would to me seem strange, that the measure of the plaintiff’s recovery should be enlarged, in consequence of the omission of the defendan ts to prove a negative, — that is, that Ford had not been guilty of converting to his own use any other portion of Buckmaster’s wool, or the cloth manufactured from it.
It may be and has been said, that, if Buckmaster collect of these defendants the full value of the five cases of cloth, he might be called to an account for so much money received, in the final adjustment of the relative claims of the parties under the contract. But why permit the plaintiff to recover beyond what he is prima facie entitled to, for the sake of giving to the defendants the right of holding him accountable for a portion of the sum collected ? But suppose the plaintiff could be called to an account by Ford, which to me is not very certain, what right has Mower to call him to an account? He is in no way a party to the contract, but comes in as the vendee of Ford ; and so far as Ford had a beneficial interest in this cloth, resulting from his labor, it should enure to the benefit of his vendee.
By the peculiar phraseology of this contract I consider Buckmaster had the absolute ownership in a portion of the cloth manufactured, and a limited interest in the residue, with a right to sell the whole, under the direction of Ford ; and, when sold, the contract furnishes the measure for each of their respective rights. Upon this view, Ford had no right to sell any portion of the cloth; and the action may well be sustained; but I think the rule of damages adopted in the county court was incorrect. As the case stood, I think the value of the wool, at the price stipulated, which was used in the manufacture of this cloth, should have been the rule. In principle the case may be likened to a case, where property is pledged as security for a specific debt. If the pledgor should wrongfully take it from the possession of the pledgee, and be sued in tort, the pledgee’s recovery would be limited to his debt, although the value of the property pledged exceeded it. I should, on this ground, advise a new trial.