218 S.W. 38 | Tex. App. | 1920
According to the agreed facts Mrs. Hamilton, the plaintiff, was the owner of certain diamonds which were placed in the possession of the defendant as a pledge for a debt of $450. The pledge was made in Greenville and the defendant lived in Greenville. The plaintiff was not at the time of the alleged occurrence a purchaser of the diamonds, nor was Mrs. Hamilton exchanging these pledged diamonds for other and different diamonds. Mrs. Hamilton was merely paying the debt for which the diamonds were pledged as security. Hence any question of fraudulent sale or deceit and misrepresentation of kind of property in mutual exchange, is neither involved nor presented by the facts of the case. The agreed statement of the case which is for our decision under the facts states:
"Plaintiff alleges and bases her rights to sue in Franklin county in that the defendant fraudulently and for the purpose of defrauding plaintiff substituted diamonds of an inferior grade and weight and placed them in the express office of Greenville marked C. O. D. addressed to A. J. Patton, care First National Bank, Mt. Vernon, Tex., where the diamonds were delivered to plaintiff after the payment of $450 to the express company on the order of the defendant."
As pledgee in possession of the original diamonds, as shown by the evidence, it was the legal duty of the defendant to return and redeliver the very thing pledged on payment or tender of payment of the debt by the pledgor. The pledgee is not authorized to return or substitute other property for the particular property pledged; and if it be true that the pledgee did return by express "substituted diamonds" instead of the very diamonds pledged in the first instance, then the pledgee has violated his agreement and the duty he owed the pledgor. The "substituted diamonds" would not be the diamonds of the pledgor, but the property of the sender, and the pledgee would still be the pledgee in actual possession and holding the original pledged diamonds. The forwarding or offering to deliver "substituted diamonds," if true, would not in any legal sense relieve the defendant of responsibility of delivering the real pledged property to the true owner. Thus, when the pledgee delivered to the express company "substituted" diamonds, if true, he was not legally complying with his legal duty and contract of pledge, but was, in legal effect, converting, if true, the pledged property to his own use and benefit. The real pledged diamonds of the pledgor would still remain and be, in a legal sense, in Greenville in the possession of the pledgee; and the taking, if true, of the pledged property in Greenville would be wrongful and fraudulent with the intent to deprive the owner of the value and to appropriate it then at Greenville to the use and benefit of the pledgee. Therefore the case is, we conclude, as pleaded by plaintiffs, one of conversion, which would be dependent upon the fact of conversion of the real pledged property, and not upon the particulars in which he has violated the pledge.
The delivery to the express company of other and different diamonds, if true, would only be evidence of conversion of the real pledged diamonds. In such event it would be evident that the pledgee retained and exercised dominion over the pledged property inconsistent with the contract of pledge and the rights of the pledgor; and the delivery to the express company of the substituted property, if true, operates, as a legal consequence, *40 to evidence and make complete the act of conversion of the real property pledged to the use and benefit of the pledgee. The taking then and there, if true, of the real pledged property, would be fraudulent and wrongful, with the intent to deprive the owner of the value and to appropriate it to the use and benefit of the pledgee; and it is evident from the facts that, if the facts be true, the real pledged diamonds are still in Greenville, and there is the place where the appropriation, if true, occurred. The suit is really for the value of the real pledged property, and consequently the venue would be there in Greenville, according to the facts.
We conclude that the trial court erred, and the judgment is therefore reversed, and the cause remanded, with instructions to transfer the suit in accordance with this opinion.