I am compelled to dissent from the construction given by the majority of the court to the contract made January 24, 1879. There is no question of the defendant’s right to the whole of the flaxseed unless the plaintiffs were the owners by virtue of the written agreement made three months before the seed was sown from which the flaxseed in question was grown. This being an action of replevin, the only question is whether the title to the crop sown by Pettis and Moss three months after making the contract, on their own land, was in the plaintiffs when this suit was commenced. The plaintiffs “ furnished ” and “ delivered ” the seed to Pettis and Moss, and were to be “ credited ” for the seed so “ advanced.” It is true, Pet-tis and Moss agreed to sow the same for the plaintiffs, and to deliver to them or their order December 1, 1879, 83 42-56 bushels of prime flaxseed. Rut it was expressly stipulated that “ in case of failure of crop,” so that Pettis and Moss were “v/nahle to pay” the plaintiffs the 83 42-56 bushels “at said time,” then by said agreement they were “to pay” to the plaintiffs or to their order, “ on demamd, the value ” that said seed would be to them in money at the time the demand should be made, with interest at the rate of ten per cent, per annum from the time said seed should have been delivered.
It is true, the seed so furnished was, by the contract, to remain the property of the plaintiffs, but it is evident this was merely by way of security; for it was not to be returned to them, nor sold for them, but Pettis and Moss were to sow the same in their own land, and then to pay for the same either in flaxseed thereafter to be grown, or in money, as indicated. This is corroborated by the clause: “ In case the said Wm. Lam/on db Bro. makes me a/ny further ad-*661vcmces they are to be settled in flaxseed at the same price, together with ten per cent, interest on the same until paid.” The words “ at the same price ” clearly refer to the former clause, whereby Pettis and Moss agreed “ to sell ” their “ entire crop of flaxseed” to the plaintiffs, or their “order,” at Mineral Point, December 1, 1879, “ at a price twenty-five cents per bushel less than the average price of flaxseed in Chicago on the-same day as shown by the Chicago reports.” The words “an j further advances” clearly refer to any flax-seed or money which the plaintiffs might thereafter advance to Pettis and Moss on credit as they had previously “ advanced ” and had “ credited ” to them the sixty-seven bushels. This is further corroborated by the fact that after the contract was made, and on the same day, the plaintiffs did fuHher advcmce to them $14, which was evidenced by a receipt indorsed upon the back of the contract. I am unable to construe the contract as a “ contract for the raising of a crop of flaxseed on shares,” or a jovnt “ adventure ” by the plaintiffs and Pettis and Moss. The amount which the plaintiffs were to receive was not dependent at all upon the amount of the crop. It was wholly immaterial to them whether the yield of flaxseed was great or small. Even if the crop had been an entire failure, yet Pettis and Moss were bound to pay them, December 1, 1879, the full value in money of 83 42-56 bushels of flaxseed. The risk or venture was, by the express terms of the contract, wholly upon Pettis and Moss. The conditions imposed were merely by way of better securing the plaintiffs for the flaxseed and money thus “ advanced” by them, and which they thus had credited to them. The seed, as well as the money thus “advanced” and thus “ credited,” and thus to be repaid, were manifestly to be converted by Pettis and Moss to their own use and benefit. Their entire loss or extinction by such conversion would, by the terms of the contract, fall upon Pettis and Moss and not upon the plaintiffs. The contract was, in effect, *662a mortgage for the amount of the advances so made, and those which might thereafter be made, upon the seed so “furnished,” with an attempt therein to make the same a further mortgage upon the future crop of flaxseed, not then in existence, but to be grown from seed to be sown three months thereafter. The trial judge manifestly regarded the contract as a valid mortgage upon the whole of such future crop, otherwise there would have been no significance to the filing of the contract, nor of the time it was done. The ' opinion of this court seems to go upon the same theory, so far as the crop grown being a security for the repayment of the $14 is concerned. Certainly the money was not let upon shares, but was advanced on credit, and its repayment was attempted to be secured upon a crop thereafter to come into existence. That this could not be done, and that the circuit court was in error, would seem to follow from the principles of law announced in the cases cited in the opinion of the court in this case.
For myself, I am unable to understand how Pettis and Moss could “ contract for the raising of a crop of flaxseed on shares ” under a contract in which “ the whole crop of flaxseed should be and remain the property of the plaintiffs.” Nor am I able to understand what “ share ” would remain for Pettis and Moss of the crop raised by themselves on their own land, if “the plaintiffs were to have the whole crop” “for their share of the adventure.” Nor am I able to understand why Pettis and Moss agreed in the contract “ to sell ” their “ entire crop ” of flaxseed to the plaintiffs, or to their order, at the price and at the time named, if it was to be, the moment it came into existence, the property of the plaintiffs, and at no time to be the property of Pettis and Moss, though raised by them, on their own land. Nor am I able to discover in the contract anything which the plaintiffs and Pettis and Moss were to have or own in common, nor in which each party were to have a “ share ” or *663take a “ venture.” The plaintiffs were simply to be repaid with interest for all that had been “ advanced ” by and “ credited ” to them, and for all they might thereafter advance to Pettis and Moss. If the plaintiffs got anything more, it was to be by a sale to them from Pettis and Moss for a stipulated price which they were to pay.
Such being the contract, I must regard the seed “furnished ” and “ advanced ” by and “ credited ” to the plaintiffs at the time of making the contract as an absolute sale on credit on the one hand, and an absolute purchase on credit on the other, with a contract which, in effect, was a chattel mortgage1 back to the vendors on the seed, to secure to them the payment of the value of 83 42-56 bushels of such seed December 1, 1819. So I must regard the $14 “ advanced ” by and “ credited ” to the plaintiffs as a mere loan to Pettis and Moss, with security back upon the seed so advanced. It is true, the contract in form purported to be a security for the repayment of the flaxseed or its value in money, and the $14 and interest upon each, upon a crop which Pettis and Moss expected to raise upon their land, but which was not then in existence, and which did not begin to grow for more than three months thereafter, but as a security it must be conceded that it was wholly inoperative, even as to the seed advanced and the money, upon the principles of the authorities cited in the opinion of the court and many others which might be added. As to the crop not then in existence, but thereafter to be raised by Pettis and Moss upon their land, the agreement was, in my opinion, a mere executory contract, for which Pettis and Moss might be liable in damages, but could not, so long as they or the defendant claiming under them were in possession, operate to put the title to the crop subsequently raised by them in the plaintiffs.
I concur in the reversal of the judgment, but think the complaint should be dismissed.