Opinion of the Court. into on the 21st and 27th of March, 1868. The principal, if not practically the only, controversy below was as to this oral agreement. The issue tendered, and which the defendants in coming into court prepared to meet, was this oral agreement as alleged in the bill of complaint. The complainant should not be permitted to change front and to claim upon an implied obligation, after averring an express contract covering the same subject matter. The issue between the parties thus tendered was not that of an implied obligation springing from the original contract of consignment, but (to repeat) an express oral contract to share in the expenses and to pay him for services rendered. The fundamental rule of equity pleading and practice requires relief to be awarded secundum allegata et probata, and does not permit a complainant to insist upon relief because the facts, as proved, entitle him to advance some other claim than that alleged in the bill. Simms v. Guthrie, 9 Cranch, 19; Carneal v. Banks, 10 Wheat. 181; Foster v. Goddard, 1 Black, 506; Harrison v. Nixon, 9 Pet. 483; Boone v. Chiles, 10 Pet. 177; Agawam Co. v. Jordan, 7 Wall. 583; Rubber Co. v. Goodyear, 9 Wall. 788. MR. JUSTICE JACKSON, after stating the case, delivered the opinion of the court. It is too clear for discussion or the citation of authorities, that the contract was not a sale of the goods by the defendants to Sturm. The terms and conditions under which the goods were delivered to him import only a consignment. The words "consign" and "consigned" employed in the letters were used in their commercial sense, which meant that the property was committed or entrusted to Sturm for care or sale, and did not by any express or fair implication mean the sale by the one or purchase by the other. The words, "Mr. II. Sturm in joint account with Hermann Boker & Co.," or "Bought of Hermann Boker & Co., in joint account," in the bill-head, cannot be allowed to control the express written terms contained in the contract as set forth in the letters. A printed bill-head can have little or no influence in changing Opinion of the Court. the clear and explicit language of the letters, and it in no way controls, modifies, or alters the terms of the contract. The purpose and object of the bill was to give a description and valuation of the articles to which the contract as embraced in the letters had reference, their description being important if the articles had to be returned, and their price or valuation necessary if they were sold and profits were made for division. The contract being clearly expressed in writing, the printed bill-head of the invoice can, upon no well-settled rule, control, modify, or alter it. That the invoice was not intended to have that effect is shown by the fact that the invoice of the consignment of October 24 differed in several respects from the invoice of September 18, although the terms and conditions in respect to each consignment were the same. In Schenck v. Saunders, 13 Gray, 37, 40, there was a written agreement in these terms: "The said Schenck, Wood & Pond of the first part agree to furnish the stock, consisting of upper and sole leather and linings, and bindings, of sufficient amount to make at least eight, and not to exceed twenty, cases per week. And the said Charles Howe of the second part is to take the stock, and make it up to the best of his abilities into women's boots; and further agrees to consign all the goods he makes to the said Schenck, Wood & Pond of the first part to be sold by them on commission of five per cent, the goods to be sold for cash, and the returns made to the said Charles Howe as fast as made. And the said Charles Howe of the second part agrees to put up and ship to the said Schenck, Wood & Pond, at their store in New York, at least eight cases of boots per week, each case containing sixty pairs, commencing the first week in May, 1856." With each shipment of leather to Howe, Schenck, Wood & Pond sent him unsigned bills, like those in the present case, in this form: "Boot, Shoe and Leather Warehouse. "Mr. Charles Howe, NEW YORK, May 15, 1856. "Bought of Schenck, Wood & Pond, Opinion of the Court. "Manufacturers and Commission Merchants, No. 25 Beekman "Terms 6 months. Street. ..... "52 sides, sole leather B. A., 644, 26... $170 66 90 "$171 56" In a contest as to the title of these goods, (boots,) between Schenck, Wood & Pond and an assignee of Howe, it was contended among other things that the invoices showed that the transaction was a sale to Howe, and the heading of the bills was relied upon to give such construction to the contract. The Supreme Court of Massachusetts, speaking by Bigelow, J., held that the transaction was not a sale, and that "the bills of parcels which were sent from time to time with the merchandise were susceptible of explanation by parol evidence, and did not change the terms of the written agreement under which the property was sent to Howe. They were sent only as memoranda of the amount and value of the merchandise transmitted. Hazard v. Loring, 10 Cush. 267.” "An invoice," as said by this court in Dows v. National Exchange Bank, 91 U. S. 618, 630, "is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity, and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. Hence, standing alone, it is never regarded as evidence of title." Was the contract, as claimed by counsel for the defendants, a contract of "sale or return"? We think not. We think not. The class of contracts, known as contracts of "sale or return," exist where the privilege of purchase or return is not dependent upon the character or quality of the property sold, but rests entirely upon the option of the purchaser to retain or return. In this class of cases the title passes to the purchaser subject to his option to return the property within a time specified, or a reasonable time, and if, before the expiration of such time, or the exercise of the option given, the property is destroyed, Opinion of the Court. even by inevitable accident, the buyer is responsible for the price. The true distinction is pointed out by Wells, J., in Hunt v. Wyman, 100 Mass. 198, 200, as follows: "An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined; in the other the property passes at once, subject to the right to rescind and return." The cases cited and relied on by the defendants, Moss v. Sweet, 16 Q. B. 493, 494; Martineau v. Kitching, L. R. 7 Q. B. 436, 455; Schlesinger v. Stratton, 9 R. I. 578, 581, involved contracts of "sale or return," in which there was a sale followed by a destruction of the property before the option of the purchaser had expired or had been exercised. It was properly held in these cases that the goods were at the risk of the purchaser pending the exercise of the option, and that he was responsible for the loss of the goods or the price to be paid therefor. These authorities are not in point in the present case. The contract under consideration did not confer upon the complainant the privilege of purchasing or returning the goods within any specified or reasonable time, for the defendants retained by express stipulation a right to share in the profits made on the sale of the goods in Mexico, and if they were not sold to have the specific goods returned to them without expense. In the letter of October 24 they specially direct that the Springfield rifles, including those covered by the consignment of September 18, as well as those covered by the consignment of October 24, should be returned if they did not realize the prices indicated in the invoices. The contract in its terms and conditions meets all the requirements of a bailment. The recognized distinction between bailment and sale is that when the identical article is to be returned in the same or in some altered form, the contract is one of bailment, and the title to the property is not changed. On the other hand, when there is no obligation to return the specific article, and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and Opinion of the Court. the title to the property is changed; the transaction is a sale. This distinction or test of a bailment is recognized by this court in the case of Powder Co. v. Burkhardt, 97 U. S. 110, 116. The agency to sell and return the proceeds, or the specific goods if not sold, stands upon precisely the same footing, and does not involve a change of title. An essential incident to trust property is that the trustee or bailee can never make use of it for his own benefit. Nor can it be subjected by his creditors to the payment of his debts. Sup Testing the present case by these established principles, it admits of no question that the contract was one of bailment, and that the title to the goods, with the corresponding risk attached to ownership, remained with the defendants. pose a creditor of Sturm had levied upon or seized these goods after they reached his possession; it cannot be doubted that the defendants could have recovered them as their property. That the contract between the parties in reference to the goods in question was a bailment upon the terms stated in the letters, is clearly established by the authorities. Among others, see Hunt v. Wyman, 100 Mass. 198; Walker v. Butterick, 105 Mass. 237: Middleton v. Stone, 111 Penn. St. 589. The complainant's common law responsibility as bailee exempted him from liability for loss of the consigned goods. arising from inevitable accident. A bailee may, however, enlarge his legal responsibility by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care-the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking. This brings us to the question whether, by the terms and conditions of the contract, as embraced in the letter of September 18, consigning the goods, it can be held that the complainant assumed such a risk in the present case. He assumed the expenses of transporting the goods to Mexico, the duty of selling them to the best advantage after they reached there, the |