John Gr. Brown entered into a contract with the plaintiff, in these words: “John Gr. Brown agrees to deliver to William C. Foster, at Rochester, thirty thousand bushels of wheat, to be ground; fifteen thousand bushels to be ground in season to be shipped east during navigation this fall; and fifteen thousand to be ground during the winter; said Brown to be subject to no charge on account of storage ; said Foster is to deliver to said Brown one barrel of superfine flour for each five bushels of wheat so delivered to be ground; the wheat to be received from G-elston & Evans, and the flour to be returned to them.”
Brown delivered 15,000 bushels of the wheat under the contract, which the plaintiff ground, and returned the flour that the contract required him to return, except 300 barrels, which he shipped by canal for Albany. The defendant, in behalf of Brown, seized 193 barrels on the way, and this suit was brought by Foster to recover their value. The flour so seized was made from the wheat furnished by Brown under the contract.
Held, that the contract was one of bailment, and not of sale, and that no title to the wheat passed to the plaintiff. The judgment rendered in his favor was therefore reversed.
(S. C., 7 N. Y. 433.)