Opinion
No. 2166.
June 13, 1923. Rehearing Denied October 3, 1923.
Appeal from Wichita County Court; Guy Rogers, Judge.
Action by Shuttle Bros. Lewis against the American State Bank of Burkburnett. From an adverse judgment, plaintiff appeals. Reversed and remanded.
Cox, Fulton Myers, of Wichita Falls, for appellant.
Fischer Fischer, of Wichita Falls, for appellee.
We are of the opinion that the evidence will not sustain the conclusion that the diamonds shipped to Benedict on May 11, 1920, in pursuance to Benedict's letter of May 9th, were shipped on open account, and that the relation resulting therefrom between Benedict and plaintiff was that of debtor and creditor, and not that of principal and factor. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S.W. 102. If Benedict had possession of the diamonds as factor, and pledged one of them to the bank to secure his personal debt, then the bank, on refusal to deliver the diamond to plaintiff and subsequent sale thereof, was liable to plaintiff for conversion of its property. McCreary v. Gaines, 55 Tex. 485, 40 Am.Rep. 818; Chase-Hackley Piano Co. v. Clymer (Tex.Civ.App.) 202 S.W. 214.
The evidence of identity of the diamond pledged by Benedict to the bank with one of the diamonds in the shipment of May 11th is not as satisfactory as it might be. While the court did not expressly find one way or the other as to such matter, the findings announced assume that identity was established, and we would not be warranted in affirming the judgment, on the theory that it was based on a finding of failure to identify the diamond alleged to have been converted.
The judgment is therefore reversed and remanded.