
    Barker & al. vs. Roberts.
    Where A. agreed to take the logs of B. at a certain place, and at an agreed method of computing the quantity, — to saw them into boards, and transport and deliver the boards to B. — a,nd the latter agreed to sell the boards, free of charge for commissions, and to allow A. all they should sell for, beyond a stipulated price per thousand, — the property to be and remain all this time at the risk of /A : — it was held that this was not a sale of the logs to A., but was merely a locado opcrls faciendi.
    
    This was an action of assumpsit, brought to recover the proceeds of certain logs which the plaintiffs alleged to be their own property, and which the defendant had converted into boards and sold for cash; he claiming them as his own, by purchase from Cowan Oaks.
    
    It appeared at the trial before TVeston J. that the plaintiffs, being the original owners of the logs, entered into a written agreement with Cowan Oaks, of the following tenor : — “ Memorandum,” &c. “ That the said Cowan &f Oaks on their part agree to take, at the Sunkhaze boom, a certain lot of logs, at the scale known by the name of the Babcock logs, and scaled by Daniel Davis, to saw and run to Bangor all the boards said logs make, free of any expense to the other party, as soon and as fast as one saw can saw them; and Barker Crosby agree to dispose of said boards free of any commission, either to sell or ship to Boston, as they the said 
      Barker Crosby may see fit; and allow to the said Cowan &f Oaks all they shall nett over seven dollars per thousand. It is understood that the said Cowan Oaks risk the logs after they are scaled, and risk the boards after the logs are sawed, until they are marketed.” Cowan &f Oaks, instead of sawing the logs, sold them to the defendant; who contended that the contract imported a sale of the logs to his vendors, and not a bailment for manufacture. But the Judge, for the purpose of settling other facts, overruled this position, and reserved it for the consideration of the whole court, a verdict being returned for the plaintiffs.
    
      Sprague and Kent argued for the defendant,
    that the contract was sufficient proof - of a sale of the logs, as it contained all the elements of a sale. Here was a fixed price, which is always received as evidence of an intent to sell; — Marsh v. Wickham,; 14 Johns. 168; — and the goods were ever afterwards at the risk of the vendee ; — who agreed “ to take” the logs ; which, in connection with a price named, means 5tto buy;” 2 Kent’s Com. 367 ; Buffum v. Merry, 3 Mass. 478; Hussey v. Thornton, 4 Mass. 405 ; 6 Mass. 422. But if, as between the original parties, the plaintiffs might claim the lumber; yet the terms of the contract are such as to authorise Cowan &/• Oaks to convey a good title to a stranger.
    
      Allen and Starrett, for the plaintiff,
    cited Babcock v. Gill, 10 Johns. 287; Seymour v. Brown, 19 Johns. 44; 3 Dane’s Abr. 190; Collins v. Forbes, 3 D. &f E. 316; Barrett v. Pritchard, 2 Pick. 512; Patten v. Clark, 5 Pick. 5 ; 7 Johns. 257; 8 Johns. 445.
   Weston J.

delivered the opinion of the Court, at the ensuing June term in Washington.

The contract between the plaintiffs and Cowan & Oaks, though sufficiently definite, if each had fulfiled the stipulations by them respectively entered into, is somewhat obscure as to the question now raised by a third person, there having been a breach of the contract on the part of Cowan Oaks, viz. whether there was a sale to them by the plaintiffs of the logs, from which the boards in controvorsy were made; but upon 'consideration, we are all of opinion that there was no sale. In common......unvlance, to take at a. settled and agreed price, is a sitie. But it is a term which applies at least as appropriately and as aptly to bailments. The agisting farmer takes cattle, to depasture. The tailor, cloth, to make into garments, and various artists and manufacturers, raw materials to manufacture for the owners. And we are satisfied the contract between the plaintiffs and Cowan Oaks, was of this description.

The price to be paid for the logs, is not stated in that part of the written instrument, where it is said that Cowan Oaks are to take them, and if it had been a sale, it would naturally and properly have been stipulated for in this connection. It is no where stated what the price of the logs was to be, but it is matter of deduction from the contract, that they were considered by the parties, as of the value of seven dollars, for so many as would make a thousand feet of boards. The object of the parties manifestly was, that Cowan & Oaks should receive the logs at Sunkhaze, that they should saw them into boards, that they should run the boards to Bangor, and there deliver them to the plaintiffs. Their compensation was to depend upon the marketable value of the boards at Bangor, or upon wliat they might produce upon a shipment to Boston. Whatever sum, beyond seven dollars, might be obtained for the boards, was to bo ¡mid to them by the plaintiffs. In this arrangement, the logs wore doubtless considered worth seven dollars a thousand, and the increased value, arising from the services of Cowan fy Oaks, was regarded as rightfully belonging to them. It is not stated that the plaintiffs were to retain the seven dollars as the price of the logs. There was no occasion for such a provision, if no sale was made, but the affirmative stipulation was, that the plaintiffs should pay to Cowan & Oaks a sum of money, to bo ascertained upon certain principles prescribed.

In the survey of logs, their quantity is not ascertained by the exact aiunber of feet of boards they may make, when manufactured, but by the judgment, of appraisers, or by a scale, which in some places is of such general and uniform application, as to be considered adopted in all contracts in relation to logs, when no other inode of admeasurement is agreed upon. In this case, the logs were to be scaled by Daniel Davis, and this was necessary, not to determine what Cowan & Oaks should pay, for they engaged to pay nothing, but how much they should receive upon a final sale of the lumber. Much stress has been laid upon the express stipulation, that the logs and the boards should be at the risk of Cowan Oaks, and this it is urged is an essential and decisive criterion of the right of property. And doubtless it is, where the risk is a deduction of law, for it is then, except in the case of common carriers, and perhaps in a few other special cases, an effect and consequence of the right of property. The former results from the latter. But it is otherwise, where the risk arises from the express agreement of the parties. It is expressed, because it would not be implied. Nothing is more common than for one to take the risk of another’s property. With certain qualifications, the law imposes it upon common carriers. What led to this provision, in the contract under consideration,does not appear, but it does not afford evidence of a change or transfer of the logs from the plaintiffs. It was matter of convention, as was the engagement on the part of the plaintiffs, that they would charge no commissions for their services. And this last stipulation is urged as an evidence of the transfer of the logs; because it is insisted that there could be no pretence that the plaintiffs would be entitled to a commission for the sale of their own property, but had it not been for this provision, it 'might have been claim* ed by them as a fair deduction from what Cowan &f Oaks were to receive; as it was a service of which they were to have at least part of the benefit.

Hussey & al. v. Thornton & al. was a case of conditional sale ; the question raised here is, whether there was any sale whatever. ' ..

Judgment on the Verdict"..  