Mallory v. Willis

If the contract was one muniment, and if by a proper construction of it the defendants were entitled to the surplus flour, I think the burthen would have rested on them of showing that the article in question was such surplus, after the plaintiffs had established that it was the produce of their wheat; so that taking the most favorable view for the defendants, there was no error in point of law in this branch of the decision at the circuit, which would entitle them to except, and the only question for our decision is, whether the contract and the delivery under it, amounted to a sale or a bailment of the wheat ?

The defendants refer us to that part of the contract which binds them to deliver a barrel of superfine flour and to guaranty its inspection, for every 4£ bushels of wheat, which it is alleged, if the plaintiffs’ construction is to prevail, is not only an unreasonable and hard contract for the defendants, but is altogether inconsistent with the notion of a bailment; for it is asked, if it were not a sale, why should the defendants guaranty that the flour should bear inspection, or why should they agree for a certain quantity of wheat to deliver a barrel of flour ? It [79] may be remarked in answer to this, that, the defendants

In Buffum v. Merry, (3 Mason's Rep. 478,) the plaintiff owned 2900 pounds of cotton yarn, and agreed to let one Hutchinson take it at the price of 65 cents per pound, and he was to pay the plaintiff the amount in plaids, at 15 cents per yard. H. was to use the plaintiff’s yarn in making the warp of the plaids, and to use for filling, other yarn of as good a quality. Under this contract the yarn was delivered to H, who failed without having manufactured it into plaids, and assigned it with other property for the benefit of his creditors. The question was whether the property in the yarn passed to H. by the delivery; and Story, J. said that it did: holding that it was not a contract whereby the specific yarn was to be manufactured into cloth, wholly for the plaintiff’s account and at his expense, and nothing, but his yarn was to be used for the purpose. That in such a case the property might not have changed; but here the cloth was to be made of other yarn as well as the plaintiff’s. The whole cloth when made was not to be delivered to him, but so much only as at 15 cents per yard would pay for the plaintiff’s yarn at 65 cents per pound. That this was a sale of the yarn at a specified price to be paid for in plaids at a specified price. (See also Story on Bailments, sec. 283; Jones on Bailments, p. 102.)

In Ewing v. French, (1 Blackford's (Indi) Rep. 353,) the plaintiff delivered a quantity of wheat to the defendants at their mill [81] to be exchanged for flour. The wheat was thrown by the defendants into their common stock, and the mill was subse

In Smith v. Clark, ( 21 Wend. 83 ,) one Hubbard owned a flouring mill, and the plain tills agreed with him to deliver wheat at his mill, and he agreed that for every four bushels and 55 pounds of wheat which should be received, he would deliver the plaintiffs one barrel of superfine flour, warranted to bear inspection. Here was nothing which imported a delivery of wheat for the purpose of being manufactured, nor any agreement to make it into flour and to receive a compensation for so doing, at a certain price per barrel; and it is obvious that Hubbard might have delivered any flour of the quality stipulated for, in satisfaction of the contract. Hence it was held that the delivery of the wheat under this agreement amounted to an exchange of the wheat for flour, and that Hubbard on receiving the wheat became indebted to the plaintiffs.

In Norton v. Woodruff, (2 Comst. 153,) the defendant agreed to “ take” wheat and to “ give” them one barrel of superfine flour for every four bushels and thirty-six pounds of wheat; but here also there was the absence of a delivery for the purpose of being manufactured, no compensation was agreed to be given to the miller for his work, there was nothing about offals, and nothing about the wheat owner’s furnishing barrels in which to pack the flour. On the contrary, the miller in this case was to furnish the barrels. This court gave proper effect to the language of this contract by holding, that the miller by agreeing to take wheat and give flour in return, had bargained for an exchange of wheat for flour; that any flour of the quality described in the contract would have ^answered its requirements, and that the property of the wheat passed upon its delivery.

But in the case under review, Willis contracted to [82] manufacture the wheat delivered, and to receive compensation

Assuming that the evidence clearly shows, as I think it does, that the flour in question was surplus flour, arising from the wheat delivered under the contract after the plaintiffs had received 196 pounds of superfine flour for every four bushels and fifteen pounds of wheat; the finding of the judge was erroneous and inconsistent with his previous decision : but if the evidence did not prove that fact, in his opinion, the finding was consistent with his opinion of the law of the case. If the defendants intended to set aside the finding, on the ground of its being against the evidence, or the weight of evidence, they should have moved the supreme court for a new trial on that ground upon a case made for that purpose. That question cannot be raised here oh this appeal. The only question here, on the bill of exceptions is, whether the decision of the judge upon the question raised as to the rights of the parties under the contract was, or not, correct. And not whether his finding was right upon the facts proved.

The judge, in effect, decided that the contract between the plaintiffs and Christopher Willis, was not one of sale or exchange, but of bailment for manufacture; bcatio operis faciendi. And I am of opinion that he was correct in that construction. So far as I understand the argument, to show it one of sale or exchange and not of bailment, it rests chiefly, if not wholly, [83] upon the absence of any express provision that the 196 pounds of superfine flour, for every four bushels and fifteen

Take another case; suppose A. has wheat which he de- [84]

So, I apprehend, if one delivers wheat to another, who is a miller, at his mill, to be ground into flour, and the miller undertakes to do it, it would not make it any the less a contract of bailment, if instead of resting on the implied agreement to allow the miller to take the customary part as compensation by way of toll, or on an express agreement to pay a sum certain per barrel for the quantity of flour .manufactured, in addition to allowing the miller to take a certain part of the flour manufactured as a compensation, the parties should agree that the owner of the wheat should receive in return, a specified quantity of flour for every given quantity of wheat delivered, and should pay a certain sum per barrel of flour to the miller as compensation for his skill and labor expended in the manufacture. The manifest inference from such an agreement would bo, either that it was understood that the wheat, when manufactured, would not produce any greater quantity of flour than was agreed to be returned, or that if it would, the surplus, together with the sum to be paid, was intended as compensation, for the work to be done.

The motive for providing by the contract for the quantity and quality of the flour that Willis should return as the product of the wheat when manufactured, may have been, to avoid all controversy which the parties may have apprehended might otherwise arise in regard to the performance of the contract by Willis ; especially if it be a fact well understood by all who have any experience in the manufacture of wheat into flour, that there is little or no uniformity either in the quantity or quality of flour produced from a given quantity and quality of wheat, ground by different millers and mills.

[85] But whatever the motive was, the express provision re

Bug gees, Gardirer, Pratt and Taylor, Js. were also of opinion that the contract was a bailment merely. They therefore voted for affirmance.

In cases of this kind the question is between a sale and a bailment; and as that is a point upon which the parties have not, in terms, declared their intention, either one way or the other, it must be settled by an inquiry concerning the nature and legal effect of the transaction. I think there was a sale, and not a bailment of the wheat: that the title passed to Willis on the delivery of the grain, and he became a debtor to the plaintiffs for the stipulated quantity of flour. The distinction which will be found to run through all the authorities on this subject, with the exception of two cases which have been overruled, is this; when the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed. But when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed : it is a sale. (Hurd v. West, 7 Cowen, 752, 756, note a; Smith v. Clark, 21 Wend. 83 ; Baker v. Woodruff, 2 Barb. 520 ; 2 Comst. 153, S. C. in error, by the name of Norton v. Woodruff; Buffum v. Merry, 3 Mason, 478; Ewing [86] v. French, 1 Blackf. 353 ; 2 Kent, 589 ; Jones on Bail, 102, 64;

Some stress has been laid upon the words—“ to be manufactured into flour, which the said Willis agrees to do;” but the whole force of the argument is broken by the additional words, “ as follows”—“ which the said Willis agrees to do as follows.” Now what follows 1 Not one word about manufacturing that particular wheat into flour; but only a stipulation to pay for the wheat in flour. This shows plainly enough that the plaintiffs were not contracting for work and labor upon their materials; but for an exchange of wheat for flour. That was the legal effect of the agreement.

It appears from the case that Willis has delivered the whole quantity of flour in pursuance of the contract. Now suppose it should turn out that a part, or even all, of the'flour was made from other wheat than that delivered by the plaintiffs, and that [87] their wheat has not been manufactured at all, will any one say that they could for that reason re-take the wheat, or have an

Again: it is evident from the terms of the contract, when read with a knowledge of the business to which it relates, that Willis was to have the surplus wheat, if there should be any, after returning to the plaintiffs one barrel of flour for every four and one-fourth bushels of wheat which he should receive. Such I understand to be the opinion of most of my brethren. How, why was he to have the surplus grain ? Hot because there was any such stipulation, in terms, between the parties; but because the legal effect of the transaction was to make Willis a purchaser of the grain, and a debtor for the price. And it is as a purchaser of the whole, and in no other way, that he acquired a title to the surplus wheat.

It has been said, that though Willis was to have the surplus wheat, the title to it did not pass until he had delivered the stipulated quantity of flour. This argument goes upon the theory that there was no sale at the time the wheat was delivered, which theory has, I trust, been shown to be false. But further; if there was no sale at the time of the delivery, there is nothing in the contract from which it can be affirmed that there ever has been a sale, either of the whole, or any part of the grain. The parties did not agree that the title should pass when Willis had delivered the flour; and for aught I can see the plaintiffs own the wheat still. The only theory which can give Willis a title to the surplus wheat, is that which gives him a title to the whole, by holding that there was a sale, instead of a bailment of the grain.

If decisions are made to turn upon mere verbal distinctions where there is no difference in principle, we shall soon have [88] a multitude of cases, but no general rules.

It is not easy to see how, upon the theory adopted by the judge at the circuit, he was led to the conclusion at which he arrived. What he in fact decided is expressed somewhat obscurely in the bill of exceptions, but if I have correctly understood his construction of the contract, it was, that upon the delivery of the wheat to the defendants, they acquired no title to it, but were entitled to so much of the flour as remained, after delivering to the plaintiff the quantity specified in the contract. He accordingly held that the defendants, to establish their title to the flour in question, must show that it was surplus flour, remaining after the delivery of 196 pounds to the plaintiffs for every four bushels and fifteen pounds of wheat received. This fact appears to have been fully proved, and yet the decision was in favor of the plaintiffs. This, however, was a question of fact, and though the learned justice may have erred in its decision, such error can not be corrected in an appellate court. It is quite probable that if the cause had been tried with a jury, there might have been found in the charge of the court tenable ground of exception. But in the mode of trial adopted by the parties, the defendants are deprived of this advantage. The only question therefore, for this court to consider, relates to the other branch of the decision at the circuit, whereby it was held that the delivery of the wheat under the contract, did not vest the title in the defendants.

However this question may be determined, all must agree, .1 think, that the case stands hard by the line which separates between bailments and sales. It certainly presents some of the indicia of each of those classes ; and though judges will agree upon the principles which are to govern the decision, they may well differ in the application of those principles to this case. By the terms of the contract, the wheat was to be delivered for the purpose of being manufactured into flour. This the defendants [89] agreed to do. It was also agreed that the plaintiffs should have all the offals or feed, and the defendants were to store the

Was it the intention of the parties that the identical wheat delivered by the plaintiffs should be returned to them in the shape of flour ? If it was, the plaintiffs never ceased to be the owner of the wheat. Would the defendants’ undertaking be discharged by. the delivery of the quantity of flour specified, of the specified quality, whether such flour were made from the wheat received of the plaintiffs, or any other wheat ? If so, then it was a contract of exchange, and when the wheat was delivered to the defendants, they became its-owners. This is the test by which it is to be decided whether the contract was a bailment or a sale.

The inclination of my own mind is to the latter alternative. The parties undoubtedly contemplated the manufacture of the wheat into flour, and perhaps I ought to add, that the same flour made from the wheat delivered by the plaintiffs, would be delivered to the plaintiffs. But did the defendants bind themselves to do "this ? Could the plaintiffs have objected to any superfine flour the defendants had seen fit to deliver to them, on the ground that it had been made of other wheat than their own ? Suppose the plaintiffs had failed to furnish wheat enough to stock the defendants’ mill, and they had made other similar contracts with other persons. Would they have been bound to keep the wheat received under such contracts separate from that received under the plaintiffs’ contract? If the defendants had received other wheat, and from all the wheat received at the [90] mill, had made one common stock for its supply, would they have violated their contract with the plaintiffs ? I think not.

This construction of the contract will be found best to harmonize with the general current of decisions in analogous cases. These cases are collected, and the doctrine they sustain is well stated, in a very sensible opinion by Mr. Justice Welles, in Baker v. Woodruff, ( 2 Barb. 520 , since affirmed upon appeal.) The only cases which favor the opposite construction, are Seymour v. Brown, ( 19 John. 44 ,) and Slaughter v. Green, ( 1 Rand. 3 .) These cases have been so often and so decidedly disapproved, that they are no longer to be regarded as authorities.

[91] Hy opinion is that there was nothing in the agreement between the parties, which required the defendants to return the

Judgment affirmed.