A sale is to be distinguished from a bailment, in that in the bailment, the obligation always remains to restore to the bailor, the particular thing transferred to the bailee, although it is still a bailment if the thing to be returned, is returned in an altered form. As for instance a delivery of wheat to be manufactured into flour, the miller to return to the party delivering, a barrel of flour, for every four and one quarter bushels of wheat delivered to the miller, is a bailment.4 An oft quoted distinction is that made by C. J. Bronson, in the case of Mallory vs. Willis5 in which he says: "When the identical thing delivered, although in an altered form is to be restored, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title in the property is changed; it is a sale." The following transaction, following the rule, was held to be a sale; the manufacturers of certain music boxes, supplied a music box with a slot attachment to one Westphal on the following terms, the music box was to be delivered and remittances for it were to be made out of the weekly earnings of the box, at the rate of two dollars a week, if the box did not earn this much the payment at the rate of two dollars a week was to be paid in any event. When the sum of two hundred and fifty dollars was paid in, then Westphal was to own the machine. The contract also stated that in case there was a default in any of the weekly payments, the whole amount was to become due and payable, or the music box company might at their election refund half the payments made, and reclaim the music box.6 The fact that the price to be paid is to be fixed at a later date would not make the delivery of grain a bailment. The courts have repeatedly held that where grain is delivered to a warehouseman on the understanding that the person receiving it may take from it at his pleasure and appropriate it to his own use, and that the identical grain or grain of like quality was not to be returned, but that the money value thereof was to be ascertained by the market price on the day the depositor should choose to fix, the transaction is a sale and not a mere bailment.7 But where there is a delivery of thing on trial to be used and if the trial is satisfactory, there exists an option to purchase; the delivery of the thing is a mere bailment and not a sale.8 Such a bailment would develop into a sale on the bailee exercising his option to purchase by signifying his acceptance, or the acceptance might be implied, by the act of the person to whom the thing is delivered, in retaining the thing an unreasonable length of time, beyond the time limited for the trial.9

1 2 Kent, 468, 12th Ed.

2 Benjamin on Sales, Vol. 1, Sec. 1.

3 Belden vs. Perkins, 78 I11., 449.

4 Foster vs. Pettibone, 57 Am. Dec, 530. 5 Mallory vs. Willis, 4 N. Y., 85.

6 Westphal vs. Sipe et al.,62 I11., I11.

It is to be borne in mind that in any close case where the language of the contract is ambiguous, the court will be guided by the real intention of the parties and not altogether by the use of certain words that might alone indicate either an intention to make a sale, or bailment, or something else.10