
    Pierce vs. Schenck.
    If logs be delivered at a saw-mill, under a contract with the miller that hd shall saw them into boards within a specified time, and that each party shall have one half the boards; the transaction enures as a bailment merely, and the bailor retains his general property in the logs till all are manufactured pursuant to the contract.
    The contract in such case is entire; and, as between the bailor and bailee, the latter can acquire no interest in any of the boards manufactured, by a mere part performance within the time.
    Accordingly, where logs were thus delivered to a miller who, after sawing a part of them into boards within the time, failed to perform as to the rest, and converted both the boards and the logs to his own use: Held, that the bailor might recover in trover for the whole, and that the miller was not entitled to any deduction on account of what had been actually sawed.
    Had the logs been delivered under a contract that the miller should return boards generally, instead of the identical boards manufactured from the logs, trover could not have been maintained, as the transaction would then have amounted to a sale.
    Where logs are delivered to be sawed, under a contract that the miller shall have one half of the manufactured article, a tenancy in common arises as to the latter if the contract be performed. Semble.
    
    Trover, tried at the Albany circuit, in April, 1841, before Cushman, C. Judge. The suit, wdiich was commenced in 1840, was brought to recover a quantity of logs furnished by the plaintiff to the defendant in the winter of 1835, and delivered at or near his mill for the purpose of being sawed into boards. The declaration was for both logs and boards. Evidence was given tending to make out that the logs were delivered under an agreement between the parties by which the defendant was to saw them on shares—i. e. each party to have one half the boards—and the sawing to be done by the 1st of' June, 1835. The defendant failed to do the work within the time stipulated ; but sawed some of the more indifferent of the logs into boards, and appropriated the boards to his own use. There was evidence tending to show that he had exercised illegal acts of ownership over the residue of the logs.
    The judge, after correctly submitting the case to the jury upon the facts, charged, among other things, that if the alleged conversion was made out, trover would lie ; and that the plaintiff might recover in this form of action, not only for the logs which had not been sawed into boards, but also for the boards, without any deduction on account of the defendant’s contemplated share in the latter. The judge refused to charge that a sale or destruction of the property by the defendant was necessary to be proved in order to maintain the action. The defendant excepted to the charge—also to the judge’s refusal to charge in the manner requested ; and the jury having found a verdict against the defendant, he now moved for a new trial upon a bill of exceptions.
    
      S. Stevens, for the defendant.
    
      H. G. Wheaton, for the plaintiff.
   Cowen, J.

This was an action of trover for logs furnished by the plaintiff to the defendant, and delivered at or near his mill, to be, by a time fixed, manufactured into boards on shares, each to have one half. The defendant manufactured some of the more indifferent logs only; and converted the "whole to his own use. I speak of what the jury must be taken to have found under the form in which the questions of fact were submitted to them by the judge. As to damages, he charged that, if the defendant had failed to fulfil the contract on his part, he was liable for the whole, without any deduction on account of the half of what he had actually sawed.

The questions are, first, whether trover was properly brought \ and secondly, whether, if it were, the direction was right in respect to the amount of damages.

Had the contract by the parties been one of sale, as, if the defendant had taken the logs, under a promise to return boards generally, of equal value to one half of the boards to be made out of them, the decision of the judge would have been erroneous. (Smith v. Clark, 21 Wend. 83—85, and the cases there cited.) But this was not the case. The plaintiff delivered his logs to the defendant, who was a miller, to be manufactured into boards—a specific purpose, from which he had no right to depart. On completing the manufacture he was to return the specific boards, deducting one half as a compensation for his labor. It is like the case of sending grain to a mill for the purpose of being ground, allowing the miller to take such a share of it for toll. This is not a contract of sale, but of bailment—locatio operis faciendi. The bailor retains his general property in the whole till the manufacture is completed ; and in the whole afterwards, minus the toll. ' The share to be allowed is but a compensation for the labor of the manufacturer, whether it be one tenth or one half. Thus, in Collins v. Forbes, (3 T. R. 316,) it appeared that Forbes furnished certain timber to one Kent, which the latter was to work up into a stage for the commissioners of the victualling office, he to receive one fourth of the clear profit and a guinea per week, on the work being done. This was holden to be a bailment by Forbes. So in Barker v. Roberts, (8 Greenl. 101,) A. agreed to take B.’s logs, saw them into boards and return them to B., who was to sell them and allow to A. all they brought beyond so much. This was held to be a bailment, and not a sale, though it was expressly agreed that the logs should remain all the while at A.’s risk. A. having sold the logs instead of sawing them, B. was allowed to recover their value against A.’s vendee. What difference is there in principle between an agreement by the owner to pay a share of the avails in money, and in a part of the specific thing 1 Either is but a compensation for his labor. Nearly all the books concede the distinction laid down in Jones on Bailm. 102, between an obligation to restore the specific thing, and a power or necessity of returning others equal in value. In the first case, it is a regular bailment. In the second, it becomes a debt. (Story on Bailm. § 439 ; Buffum v. Merry, 3 Mason, 478 ; Holbrook v. Armstrong, 3 Fairf. 31—34 ; Dearborn v. Turner, 4 Shepl. 17 ; Ewing v. French, 1 Blackf. 353, 355, & Note (2) ; Hurd v. Wesi, 7 Cowen, 752—756, & note (a) ; Smith v. Clark, 21 Wend. 84, 85.) I have been unable to see any difference in the nature of the contract, whether there be an obligation to restore the whole, or only a part of the specific thing. The owner of goods may reserve the general ownership in the whole or in any part, as he pleases; and he can with no more propriety be said, pro tanto at least, to have parted with it in the latter case, than in the former.

Was it correct to tell the jury that, unless the defendant had performed his contract, no right vested in him to take any part of the boards, even a share of those which he had actually sawed 1 I think it was. I am of opinion that when a manufacturer receives goods for the purpose of being wrought in the course of his trade, the contract is entire; and without a stipulation to the contrary, he has no right to demand payment until the work is complete. A fortiori he has no right to carve out payment for himself, without consulting the bailor. A miller is entitled to take toll from your grist, on grinding it; but he chooses to grind only a part, and then sell the whole. He is not entitled to his toll for what he actually ground. It is like the common case of a man undertaking to labor during a certain time, or in finishing a certain amount of work, for so much. Till the labor be performed, he can claim nothing. It may be conceded that, had the logs in question been sawed as agreed, a tenancy in common would have arisen, and the plaintiff’s damages been thus limited to the value of one half the boards. Not having been so sawed, no right

vested in the defendant; at least, none which could work a change in the relation between the parties of bailor and bailee. As I understand the judge, he directed the jury to allow damages upon this principle, should they think the case came within it. And I see nothing upon which I feel authorized to say that the verdict is not according to the weight of evidence.

Nelson, Ch. J. and Bronson, J. said, the question whether the plaintiff could recover as damages the value of all the boards which were made from the logs sawed, seemed not to have been distinctly made on the trial. They agreed, that the plaintiff was entitled to recover the value of all the logs.

New trial denied. 
      
       The case of Smith v. Clark, (21 Wend, 84,) considers Seymour v. Brown, (19 John. R. 44,) as overruled.
     