[208]*208The opinion of the court was delivered by
Hall, J.
The first and principal question in the case is, whether the plaintiff had such a property in the goods, as to entitle him to sustain the action. This depends upon the construction of the written contract entered into between the plaintiff and Ford for the manufacture of the cloth. It is insisted on the part of the defendants, that the contract is evidence, either of a sale of the wool by the plaintiff to Ford, or of a joint ownership in the plaintiff and Ford of the cloth, after its manufacture; and that, in either view of the case, trover will not lie. On the other hand it is contended, on' the part of the plaintiff, that both the wool and the cloth continued the property of the plaintiff, until the time of the conversion.
These controverted points are to be determined by the intention of the parties, as manifested by the terms of their contract. The contract commences as follows, viz., “ This agreement, made by and between John Buckmaster of, &c.-, party of the' first part, and Samuel Ford of, &c., party of the second part, witnesseth, that the said John Buckmaster agrees to furnish and to deliver to the said Samuel Ford, at his factory in Bridgewater, in the county of Windsor, about twelve thousand pounds of wool, which the said John has now on hand, — said wool to be delivered from time to time at the said factory, on demand, in sufficient quantity to keep the said factory in full operation, until the whole of said wool shall be delivered; and the said Samuel Ford agrees to manufacture said wool into cassimers as soon as possible, after manufacturing wool that is now on hand, and the said Samuel doth farther agree to deliver all the cassimers, manufactured from the wool aforesaid, to the said John, at the said factory, from time to time, when finished and ready for market.”
If the contract had stopped here, I apprehend there could be no reasonable doubt of its construction. It is thus far a contract by Ford to receive from Buckmaster a quantity of his wool, to manufacture into cloth, and to deliver the cloth to him at the factory, as fast as manufactured. It is true, the word deliver, from the connection in which it may be used, or from the subject matter of the contract, in which it is found, is sometimes construed as equivalent to the word pay. It is evident, however, that no such import can be given to the word deliver, in reference to the cloth in this contract, because there was no indebtedness to Buckmaster, upon which a [209]*209payment could possibly be applied. The delivery here must be a return of the cloth, and not a payment of it. The wool being the property of Buckmaster, the cloth, into which it was made, would continue his, and he would be liable to Ford for the value of his labor bestowed in the manufacturing. This is the common principle applicable to bailments of this description, recognized by all the authorities cited in the argument on both sides. The property in the manufactured article may doubtless be changed by contract; but in the absence of such contract it remains in the bailor.
The contract, in this case, if it had stopped with the part that has been above copied, would, however, have been imperfect in one particular. No price for the manufacture would have been agreed upon. But Ford would doubtless have had a right of action against Buckmaster, for what his services in the manufacture would have been reasonably worth.
We think the residue of the contract, consistently with the part above copied, may be fairly and most naturally construed, as specifying a mode of determining the price, that is to be paid to Ford for the manufacturing. In order to ascertain the price, Buckmaster is to take the cloth to the Boston market, and, after deducting freight, and forty four cents per pound as the value of his wool, from the price which the cloth is sold for, the residue is to go to Ford for his services. Although this gives Ford no property in the cloth, yet it makes him the principal party in interest in the sales, as the amount of his compensation depends on the price, which shall be obtained by Buckmaster; — and hence the provision in the contract, giving Ford a voice in determining the time and manner of the sales in the Boston market, which are, however, to be made for Buckmaster, and not for Ford. The fact, that Buckmaster is to pay Ford one third of the advances he shall receive on the doth from the commission merchant, towards defraying the expenses of manufacturing, is consistent with this view of the contract; as is also the provision, that Buckmaster may take from the cloth, before sending it to market, one ninth of the number of yards manufactured, at ninety cents per yard, — it being equivalent to an agreement by Buckmaster to pay Ford forty six cents per yard for the manufacturing. These provisions are also introduced into the contract for the declared purpose of determining the price to be paid Ford for the raanufac[210]*210turing; — the language of the contract succeeding that above copied, and introductory to these provisions, being, “ and the said Buck-master is to take said cassimers to Boston market and have them sold, and is to pay over to said Samuel¡ for manufacturing the same, the balance of money obtained ” by the sales, &c.
■ That it was understood by the parties, that Ford was to manufacture the wool into cloth for Buckmaster, and not for himself and Buckmaster jointly, is farther indicated by the concluding part of the contract, which provides, that Ford shall, on notice thereafter being given, “ manufacture for the said Buckmaster, as aforesaid,” about five thousand pounds of other wool. I do not perceive, how this contract can receive any other construction, than that which we have given it; and under this view of it we must hold, that the property in the cloth was in the plaintiff, and that he had the right to the possession, as fast as it was manufactured.
Although Ford had no property in the cloth, either as tenant in common, or otherwise, he had doubtless an interest in its preservation. And it may be conceded, that, if the cloth, on its way to market, or after its arrival there, had been destroyed by fire, or flood, without the fault of Buckmaster, Ford would have lost his compensation for its manufacture; — not because he had any property in it, but because his pay for the manufacture was to depend upon the sale of it in market. Until such sale, or some default in Buckmaster in not making it, he could claim no compensation. But the property and right of possession being in Buckmaster, the cloth could not have been lawfully attached, as belonging to Ford; though any sum, reasonably due to Ford from Buckmaster for the manufacture, might doubtless have been reached by the trustee process.
It is insisted, in behalf of the defendants, that the evidence did not show a joint conversion of the property by the two defendants, and that therefore the judgment below was erroneous. There is no doubt, that proof of a joint conversion was necessary to justify a recovery against both defendants. But we think a joint conversion was shown. The case of Grant v. King, 14 Vt. 367, is directly to the point, that a wrongful sale of property by a bailee is a conversion in both the seller and purchaser, for which the bailor may maintain trover against both. The plaintiff might probably have [211]
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[208]*208The opinion of the court was delivered by
Hall, J.
The first and principal question in the case is, whether the plaintiff had such a property in the goods, as to entitle him to sustain the action. This depends upon the construction of the written contract entered into between the plaintiff and Ford for the manufacture of the cloth. It is insisted on the part of the defendants, that the contract is evidence, either of a sale of the wool by the plaintiff to Ford, or of a joint ownership in the plaintiff and Ford of the cloth, after its manufacture; and that, in either view of the case, trover will not lie. On the other hand it is contended, on' the part of the plaintiff, that both the wool and the cloth continued the property of the plaintiff, until the time of the conversion.
These controverted points are to be determined by the intention of the parties, as manifested by the terms of their contract. The contract commences as follows, viz., “ This agreement, made by and between John Buckmaster of, &c.-, party of the' first part, and Samuel Ford of, &c., party of the second part, witnesseth, that the said John Buckmaster agrees to furnish and to deliver to the said Samuel Ford, at his factory in Bridgewater, in the county of Windsor, about twelve thousand pounds of wool, which the said John has now on hand, — said wool to be delivered from time to time at the said factory, on demand, in sufficient quantity to keep the said factory in full operation, until the whole of said wool shall be delivered; and the said Samuel Ford agrees to manufacture said wool into cassimers as soon as possible, after manufacturing wool that is now on hand, and the said Samuel doth farther agree to deliver all the cassimers, manufactured from the wool aforesaid, to the said John, at the said factory, from time to time, when finished and ready for market.”
If the contract had stopped here, I apprehend there could be no reasonable doubt of its construction. It is thus far a contract by Ford to receive from Buckmaster a quantity of his wool, to manufacture into cloth, and to deliver the cloth to him at the factory, as fast as manufactured. It is true, the word deliver, from the connection in which it may be used, or from the subject matter of the contract, in which it is found, is sometimes construed as equivalent to the word pay. It is evident, however, that no such import can be given to the word deliver, in reference to the cloth in this contract, because there was no indebtedness to Buckmaster, upon which a [209]*209payment could possibly be applied. The delivery here must be a return of the cloth, and not a payment of it. The wool being the property of Buckmaster, the cloth, into which it was made, would continue his, and he would be liable to Ford for the value of his labor bestowed in the manufacturing. This is the common principle applicable to bailments of this description, recognized by all the authorities cited in the argument on both sides. The property in the manufactured article may doubtless be changed by contract; but in the absence of such contract it remains in the bailor.
The contract, in this case, if it had stopped with the part that has been above copied, would, however, have been imperfect in one particular. No price for the manufacture would have been agreed upon. But Ford would doubtless have had a right of action against Buckmaster, for what his services in the manufacture would have been reasonably worth.
We think the residue of the contract, consistently with the part above copied, may be fairly and most naturally construed, as specifying a mode of determining the price, that is to be paid to Ford for the manufacturing. In order to ascertain the price, Buckmaster is to take the cloth to the Boston market, and, after deducting freight, and forty four cents per pound as the value of his wool, from the price which the cloth is sold for, the residue is to go to Ford for his services. Although this gives Ford no property in the cloth, yet it makes him the principal party in interest in the sales, as the amount of his compensation depends on the price, which shall be obtained by Buckmaster; — and hence the provision in the contract, giving Ford a voice in determining the time and manner of the sales in the Boston market, which are, however, to be made for Buckmaster, and not for Ford. The fact, that Buckmaster is to pay Ford one third of the advances he shall receive on the doth from the commission merchant, towards defraying the expenses of manufacturing, is consistent with this view of the contract; as is also the provision, that Buckmaster may take from the cloth, before sending it to market, one ninth of the number of yards manufactured, at ninety cents per yard, — it being equivalent to an agreement by Buckmaster to pay Ford forty six cents per yard for the manufacturing. These provisions are also introduced into the contract for the declared purpose of determining the price to be paid Ford for the raanufac[210]*210turing; — the language of the contract succeeding that above copied, and introductory to these provisions, being, “ and the said Buck-master is to take said cassimers to Boston market and have them sold, and is to pay over to said Samuel¡ for manufacturing the same, the balance of money obtained ” by the sales, &c.
■ That it was understood by the parties, that Ford was to manufacture the wool into cloth for Buckmaster, and not for himself and Buckmaster jointly, is farther indicated by the concluding part of the contract, which provides, that Ford shall, on notice thereafter being given, “ manufacture for the said Buckmaster, as aforesaid,” about five thousand pounds of other wool. I do not perceive, how this contract can receive any other construction, than that which we have given it; and under this view of it we must hold, that the property in the cloth was in the plaintiff, and that he had the right to the possession, as fast as it was manufactured.
Although Ford had no property in the cloth, either as tenant in common, or otherwise, he had doubtless an interest in its preservation. And it may be conceded, that, if the cloth, on its way to market, or after its arrival there, had been destroyed by fire, or flood, without the fault of Buckmaster, Ford would have lost his compensation for its manufacture; — not because he had any property in it, but because his pay for the manufacture was to depend upon the sale of it in market. Until such sale, or some default in Buckmaster in not making it, he could claim no compensation. But the property and right of possession being in Buckmaster, the cloth could not have been lawfully attached, as belonging to Ford; though any sum, reasonably due to Ford from Buckmaster for the manufacture, might doubtless have been reached by the trustee process.
It is insisted, in behalf of the defendants, that the evidence did not show a joint conversion of the property by the two defendants, and that therefore the judgment below was erroneous. There is no doubt, that proof of a joint conversion was necessary to justify a recovery against both defendants. But we think a joint conversion was shown. The case of Grant v. King, 14 Vt. 367, is directly to the point, that a wrongful sale of property by a bailee is a conversion in both the seller and purchaser, for which the bailor may maintain trover against both. The plaintiff might probably have [211]*211treated the removal of the cloth from the factory at Bridgewater as a conversion by Ford, or he might have waived his action against Ford, and gone against the other defendant for a conversion of the cloth in his subsequent sale of it in Boston. But it was at the election of the plaintiff, to choose which of the wrongful acts of the defendants he would consider a conversion of his property; and it is not for the defendants to say, that he should only claim against them for such of their separate wrongful acts, as would have enabled them to defeat his action.
It is also claimed by the defendants, that the rule of damages adopted in this case, which was the value of the cloth, was erroneous, — that the recovery should only have been for the value of the plaintiff’s wool, from which the cloth was made. Upon this question some members of the court have entertained considerable doubt, and it is one on which we are perhaps now not entirely agreed. Although the general rate of damages in trover is the value of the property at the time of the conversion, yet there are cases, where it appeared the plaintiff would be fully indemnified by a less sum, in which- deductions from that value’ have been made. Such are Vickery v. Taft, l D. Ch. 241, and Chamberlin v. Shaw, 18 Pick. 278. In each of those cases it distinctly appeared, that if the plaintiff should recover the full value of the property, the defendants would hqve an immediate right of action against the plaintiff, on contract, for a portion of that value; and to save the necessity of a cross action the damages were allowed to be reduced. I do not think this case is shown to be one of that character. If it appeared, that the cloth sued for was all that was manufactured from the wool delivered by the plaintiff under the contract, there might, perhaps, be ground for claiming,- that the plaintiff would be indemnified by a recovery for the value of the wool, of which the cloth was made. In such case the plaintiff would reeovér the value of all his wool. But the cloth, which is the subject of the present suit, is the produce of but a portion of the plaintiff’s wool, and whether a recovery in this ease for the value of the wool, of which the cloth converted was made, would indemnify the plaintiff depends upon the question, whether Ford has performed his contract in regard to the residue of the wool. In order to have the damages reduced below the value of the cloth, the defendants should have shown, that the plaintiff’s [212]*212lien was less than that value, — in other words, that the extent of the plaintiff’s lien on the cloth in controversy was only to the value of the wool, from which it was manufactured. This has not been shown. Unless the plaintiff’s lien were thus limited, and the defendant would in consequence have a'good ground of action on the contract for a portion of the damages, which are included in the verdict, there can be no pretence, that they should have been reduced. If he had such cause of action, and have neglected to show it, he has still left to him the precise remedy, which he had provided for himself in the contract, viz., an action against Buck-master for the breach of it.
The judgment of the county court is therefore affirmed.