
    Norton and others, vs. Woodruff.
    The defendant, who owned a flouring and custom mill, contracted to"take” th» wheat of the plaintiffs, which was to be of good merchantable quality, and to “ give” them one barrel of superfine flour, at his mill, for every four 36-60ths bushels. He was to pack the flour in first-rate barrels and warrant it to pass inspection; one-half the flour to be delivered on a given day, iand the othei half on a given day later, or as much sooner as he could make it. Held, that the contract imported a sale of the wheat, and not a bailment. •
    And therefore further held, that the accidental destruction of the mill, and the wheat after it was received into the mill, by fire, did not excuse the defendant from delivering the flour.
    The subsequent declarations and conduct of the defendant are not admissible in evidence with a new to the construction of such a contract. Per Gardiner, ,T.
    Baker v. Woodruff, 2 Barb. 520, affirmed.
    Appeal from supreme court, where the action was assumpsit by Norton, Baker and Hall against Wood-ruff, tried at the Onondaga circuit,"before Whiting, circuit judge, in April, 1846. The plaintiffs claimed to recover upon a contract in the words following viz:
    “ I agree to take all the wheat that Norton, Baker and Hall have at the storehouse of S. H. Cook, in Camillus, and also all the wheat they have at the storehouse of E. Shead, in Belle-isle, and give them one barrel of first rate superfine flour at my mill in Salina, for every four and 36-60th bushels of wheat. I am to take the wheat at the storehouses, and pack the flour in first rate barrels, and warrant the flour to pass inspection in Albany or New York market for good superfine flour, one-half of the flour to be delivered on Friday of next week, and the balance on Friday of the week after, and as much sooner as I can make it. The wheat is to be of good merchantable quality. J. C. Woodruff.
    “Salina, Oct. 2, 1845. Norton, Baker and Hall.”
    It was proved that the quantities of wheat mentioned in the above contract amounted to 3848 bushels, all of whicn was received into the defendant’s mill, in pursuance of the contract, on the 6th and 8th days of October, 1845; that the defendant had on hand at the time about 4000 bushels of other wheat of about the same quality as that received from the plaintiffs, and that on receiving the wheat in question the whole was mixed together. It also appeared that the wheat would make about one barrel of superfine flour to four and 15-60ths bushels of wheat; that the defendant’s mill would grind about 100 barrels of flour per day besides ordinary custom work; that the defendant was in the habit of taking in wheat almost daily, none of which was kept separate ; and that he supplied persons with whom he dealt with flour made from the common mass of wheat, including that received from the plaintiffs. On the 10th day of October, 1845, the defendant delivered to the plaintiffs 420 barrels of flour upon the aforesaid contract, and no more was ever delivered.
    On the part of the defendant it was proved that on the night of the 12th of October, 1845, the mill accidentally took fire *and was consumed, with all its contents, without any fault or negligence of the defendant. There was then ithe mill about 4000 bushels of wheat, including nearly 2000 bushels of the wheat received from the plaintiffs, and about 150 barrels of flour packed.
    The defendant insisted that the contract was one of bailment, and not of' sale, and therefore that by the destruction of his mill and its contents without fault on his part, he was excused from delivering the residue of the flour. The circuit judge so held, and on that ground nonsuited the plaintiffs. The plaintiffs excepted, and moved in the supreme court for a new trial, which was granted by that court sitting in the Seventh District. The defendant appealed to this court.
    
      Geo. F. Comstock, for appellant,
    insisted that the contract imported a bailment rather than a sale, and cited Seymour v Brown, (19 John. 44;) Slaughter v. Green, (1 Rand. 3;) Pleasants v. Pendleton, (6 id. 473, 505;) Jackson v. Anderson, (4 Taunt. 24;) Whitehouse v. Townsend, (12 East, 613;) Damon v. Osborn, (1 Pick. 477 ;) 2 Kent. Com. 365; Story on Bail. § 40.)
    
      
      J. M. Lawrence, for respondent,
    insisted that the contract was a sale, and not a bailment, and cited Smith v. Clarke (21 Wend. 83); Hurd v. West (7 Cowen 752); Buffum v. Merry (3 Mason 478); Ewing v. French (7 Blackf. 353, and note); (Jones on Bail., 64, 102; Kent’s Com., 589; Story on Bail., 83, § 2.)
   Gardner, J.,

delivered the opinion of the court.—The only ■ question necessary to be considered is, whether the terms of the contract, taken in reference to the subject matter and the situation of the parties, fairly import a sale or a bailment. Neither the declarations nor the conduct of the defendant subsequent to the agreement, were admissible with a view to its construction. , Evidence of this character may be resorted to for the purpose of pioving a contract, or the sense in which particular terms were ¿sed by the parties,' and sometimes with *a view to show f conversion of the property, where a bailment has beei. previously established. Here, however, the contract is in writing. There is no such ambiguity in th.e terms as requires the aid of extrinsic testimony to explain them, and the rights of the parties must consequently be determined by its language.

It appears, then, by the contract, that the defendant agreed to take all the wheat of the plaintiffs at, &c. and give them one barrel of first rate superfine flour for every four bushels and fifty-six pounds of wheat of a good merchantable quality; the flour to be packed in first rate barrels and warranted to pass inspection in Albany and New-York for good superfine flour. If the word “ take ” as it seems in this contract is equally applicable to a bailment as to a sale or exchange, and therefore equivocal, the term “ give ” requires some act of the defendant which should pass the property in the flour to the plaintiffs. As a word of contract, it demands something more than the re-delivory of the plaintiff’s wheat in the form of flour. It implies that the property in the thing to be given is in the donor until ctianged by delivery. The word does not impart a mere gratuity, since the defendant was to “give” superfine flour “for,” that is, in consideration of, or as an equivalent for, the whom taken by him from the plaintiffs.

There is nothing in the contract that expressly or by implication obliged the defendant to deliver to the plaintiffs flour manufactured from this wheat, or wheat of a similar quality, to the exclusion of any other in their possession, or which they might subsequently obtain. The agreement upon his part was satisfied by the delivery of a barrel of' first rate superfine flour for every four bushels and fifty-six pounds of wheat received by him, whether manufactured at his mill or elsewhere, obtained by purchase or otherwise. This is a controlling circumstance to show that the parties intended a sale or exchange and not a bailment. The distinction between an obligation to restore the specific thing received, or of returning others of equal value, is the distinction between a bailment and a debt, so recognized by the decisions in England and this state, with the exception of Seymour v Brown, (10 John. Rep. 44;) Jones on Bailment *102, 64 ; 7 Cowen Rep. 756; Smith v. Clarke (21 Wend. 84); Bykers v. Allen (7 Hill 498); 2 Kent’s Com., 590. The decision in Seymour v. Brown has been overruled in the same court in which it was pronounced, and cannot, we think, be sustained either upon principle or authority. A new trial must be granted.

New trial granted. 
      
       Where by the terms of the contract, the owner parts with his property, and takes a promise of substitution, the person to whom it is delivered, instead of being a bailee, becomes a debtor. Seymour v. Wyckoff, 10 N. Y. 216. Reed v. Abbey, 2 T. & C. 380. Thus, a contract with a manufacturer, to deliver to him raw materials, to be returned manufactured, is one of bailment; but if the contract is, to return a manufactured article of equal value, then it is a contract of sale, and the title to the raw material is changed. Foster v. Pettibone, 7 N. Y. 433. The case of Mallory v. Willis, 4 Ibid. 76, illustrates this distinction : there, the plaintiff agreed to deliver good merchantable wheat, at the defendant’s mill, to be manufactured into flour; the defendant agreeing to deliver 196 pounds of superfine flour, packed in barrels, to be furnished by the plaintiff, for every four bushels and fifteen pounds of wheat—the plaintiff to have the “offal or feed;’* and it was held to import a bailment and not a sale.
     