specially concurring.
Both parties have treated the Grimms-Conida contract as a “bailment,” both in the trial court and in this Court where we have properly decided the appeal on the theories on which the action was tried. It should be noted, however, that the word “bailment” does not appear in the written agreement. Equally missing are the words “bailee” and “bailor.” Nonetheless, Conida purported to contract on the basis that title to all seed *887beans and to all the crops which grew from the same remained in Conida, with Grimms to be docked $1.00 per hundredweight for each specific percentage graded below the minimum of a U.S. No. 1.
While I have little trouble in agreeing that this is not a sale, to my mind it does not necessarily follow that it is a bailment. To indulge in the fiction of calling a bailment that which is not a bailment does very little to promote jurisprudence as a science. My vote for affirmance, therefore, should not be construed as implying any conviction that the arrangement between Grimms and Conida was a bailment. Obviously, once those seed beans were planted, it was impossible for the Grimms to return the “bailed goods,” which, in my view, is always the right of a bailee. Industrial Leasing Corp. v. Thomason, 96 Idaho 574, 532 P.2d 916 (1974).
The tradition of referring to seed contracts as “bailments” appears to have originated in Idaho in the case of D. M. Ferry & Co. v. Smith, 36 Idaho 67, 209 P. 1066 (1922). In that case, the Court upheld the seed company’s claim, as bailor, to ownership of all the crop in question as against the claim of a landlord who was by written lease entitled to one-half of all crops grown on his land, and who had not participated at all in the lessee-bailee’s contract with the seed company. In so concluding, the Idaho Supreme Court relied heavily upon a Montana case, decided just one year earlier, involving the same seed company, D. M. Ferry & Co. v. Forquer, 61 Mont. 336, 202 P. 193, 29 A.L.R. 642 (1921). It was the Montana court which first observed such a contract as being one founded in bailment; the Idaho court merely fell into line, without making any independent analysis of the legal status which existed between the lessee and the seed company. The Montana holding was somehow molded out of language found in Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Reprint, 107, 5 Eng. Rul. Cas. 247 (1702), wherein, as the Montana court observed,
Chief Justice Holt classified the different kinds of bailments, and, among other things, said: “The fifth sort is when goods or chattels are delivered to be carried or something is to be done about them for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them.” D. M. Ferry & Co. v. Forquer, 61 Mont. 336, 202 P. at 195.
Even so, the Montana court, in evident realization that it was on tenuous ground in applying 18th century English law of common carriers to Montana seed contracts, quickly added:
It may be that Chief Justice Holt, in thus expounding the common law, did not have in contemplation a seed contract of the character of the one before us, but it is the malleability of the common law, its adaptability to changed conditions, that is its distinguishing characteristic and greatest virtue, and it may be asserted with confidence that the modern law of bailments finds justification in the rules announced in Coggs v. Bernard, in whatever varied form they may be promulgated. Id.
In Washburn-Wilson Seed Co. v. Alexie, 54 Idaho 727, 35 P.2d 990 (1934), the Court continued to uphold the validity of Idaho’s Ferry Co. bailment doctrine as still “defining the rights between the seed company and the party contracting with it.” The Ferry Co. case was overruled only so far as necessary to hold that a landlord is co-owner of any crops to be grown upon his land, and that his cotenant (his lessee), bailment contract or no, can “make no contract with [the seed company] affecting his [the landlord’s] title to such one-third interest.”1
I submit that it is unrealistic to continue to indulge in the fiction that a bean, which is irretrievably planted in the ground, and whose very existence as a bean ceases as it turns into a plant, may be the subject of a bailment, entitling the supplier of the bean *888to claim all the beans produced from that plant. The parties essentially have entered into a joint venture, with the seed company supplying the seed beans, and the grower, here the Grimms, supplying the land in which the beans may be planted, together with all the labor which goes into planting, cultivating, harvesting, and hauling to the warehouse. The Idaho court, in our Ferry Co. case, in quoting from the Montana Ferry Co. case, came close to the right answer where it spoke of “a share of the net proceeds of the adventure.” 36 Idaho at 73, 209 P. at 1067. Here the grower’s share was agreed upon at so much per hundredweight, which seems to be what he was to receive for services rendered in the adventure, and not, by any stretch of the imagination, as compensation for storing the beans one inch apart in rows in the ground.
. This doctrine was derived from the intervening case, Devereaux Mtg. Co. v. Walker, 46 Idaho 431, 268 P. 37 (1928).