Buffum v. Merry

STORY, Circuit Justice. My opinion upon this evidence is, that by the contract and delivery, the property in the yarn passed to Hutchinson. 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.' There the property in the yam might not be changed; but here the cloth was to be made of other yarn as well as the plaintiff’s, the warp of the plaintiff’s yarn, the filling of the defendant’s. The whole cloth, when made, was not to be delivered to the plaintiff, but so much only as at fifteen cents per yard would pay for the plaintiff’s yarn at sixty five eents per pound. What is this, but the sale of the yarn at a specified price, to be paid for in plaids at a specified price? Suppose after the delivery of the yarn to Hutchinson it had been burnt up, would not the loss have been his? Suppose after the plaids were manufactured, and before delivery of any part to the plaintiff, they had been destroyed, would the loss have been the plaintiff’s? Certainly not. The plaids when manufactured would have been Hutchinson’s, and the plaintiff would not have been' entitled to any part of them before delivery to him in pursuance of the contract. In the case of Babcock v. Gill, 10 Johns. 287, there was in the opinion of the court a constructive delivery of the pearl-ashes to the plaintiff after the manufacture, and they were separated from the other parcels. The case of Seymour v. Brown, 19 Johns. 44, is also distinguishable from that before the cotut. There the wheat was to be delivered to the defendants, and a barrel of flour was to be returned for every five bushels. The court were of opinion, that the facts did not prove a sale of the wheat, or an exchange of it for flour at so many bushels per barrel. They must have considered it like the case of a bailment of the wheat to be ground into flour, or a locatio operis faciendi. I do not perceive otherwise how that case can be supported, in point of law. If the flour to be returned was not to be ground out of the identical "wheat sent by the plaintiffs, it is difficult to perceive how it differed from the common case of an exchange or .sale. The property upon the delivery passed to the defendant, unless he was to return the same wheat ground into flour. If not to be returned, then supposing he had sent flour to the plaintiffs, ground from other wheat, would it be contended, that the defendant’s wheat was not the property of the defendant? If not, when did it become the property of the defendant? certainly at the time of the delivery. The bargain was then complete. The rule is correctly laid down by Sir William Jones in his Essay on Bailments, (page 64), where speaking of loans of money, wine, corn, and other things, which are not to be specifically restored, but only in equal value or quantify, he adds, that in such case the absolute property of them is transferred to the borrower, for in such case it is not a • bailment, but it becomes a debt Jones,. Bailm. 64, 102. So again quoting Alfenus, he says: “If an ingot of silver be delivered to a silver-smith to make an urn, the whole property is transferred, and the employer is only a creditor of metal equally valuable, which the workman engages to pay in a certain shape.” Jones, Bailm. 102. In such a case, the only question is, whether the specific ingot is to be wrought up into the urn, or any other ingot of equal value. If the former, it is a bailment, if the latter, a contract for making and delivering an urn,, in consideration of receiving an ingot of silver, and the payment of the expenses of the workmanship. What is a sale or exchange? Blackstone says it is a transmutation of property from one man to another in consideration of some price or recompense in value. If it be a commutation of goods for goods, ■ it is more properly an exchange. 2 Bl. Comm. 446. Now that is precisely the present case. Cotton yam was here bargained for plaids, to be delivered at a future time at certain stipulated prices. When the bargain was completed by delivery of the yam, the property in the latter passed to Hutchinson.