Lead Opinion

MOURSUND, J.

(after stating the facts as above). The trial court, though of the opinion that the sale of plaintiff’s stock to C. J. Loe was invalid, concluded that plaintiff could ask nothing further than to be restored to the position the parties would have occupied had no such sale been made, and had suit been brought on the $1,000 note, with prayer for foreclosure of the lien upon the collateral. If this was a suit to recover' the stock itself, in view of the absence of evidence showing a depreciation in value of such stock, or evidence of damage because of its depreciation, it could be said that even though a conversion had taken place no injury was suffered; but in this case plaintiff sued to recover the value of the stock at the time of the alleged conversion, and if a conversion took place. And he is entitled to recover such value and cannot be required to accept the stock tendered back, then the inquiry whether the stock was worth more or less than at the time of the sale to Loe became immaterial.

[1] It is well settled that upon conversion by the pledgee of the property pledged the pledgor may sue either for the property itself, or for its proceeds if sold, or may maintain an action for damages for breach of the contract to keep the property safely and restore it to the pledgor upon payment of the debt. 31 Cyc. p. 844; Hale on Bail-ments & Carriers, p. 160. Where plaintiff sued only for damages for conversion, he is not entitled to a judgment for the property itself. Harris v. Staples, 89 S. W. 801.

[2] Again, when a conversion takes place, the person whose property has been taken is not required to take the property back if the wrongdoer tenders the same to him, and such a tender constitutes no defense to the suit for damages for the conversion of the property. Weaver v. Ashcroft, 50 Tex. 427; Crawford v. Thomason, 53 Tex. Civ. App. 567, 117 S. W. 184; Hofschulte v. Hardware Co., 50 S. W. 608; Bitterman v. Hearn, 32 S. W. 341; Baldwin v. Davidson & Co., 127 S. W. 562.

[3] As the wrongdoer cannot require the person whose property he converted to his use to take back the property, the court is without authority to accomplish that end by a judgment setting aside the unauthorized sale and directing that, unless the property is redeemed by payment of the debt, the same shall be sold in satisfaction of such judgment. Such a judgment reinstates the plaintiff as owner of the property and deprives him of his legal right to recover the value thereof at the time of the conversion, which right is not affected by either an increase or decrease in its value subsequent to the conversion.

[4] If in this case, viewing the evidence from the plaintiff’s standpoint, a case of conversion is made out, the issues should have been submitted- to the jury. The pledgee, though having the power by contract to sell the collateral at private sale without notice to the pledgor, cannot escape the duty resting upon him as a trustee to conduct the sale fairly and in good faith, and in such a way as to subserve not only the rights he has, but also the interest of the pledgor. Colebrook on Collateral Securities, p. 215; 31 Cyc. p. 877 (6); King v. D. Sullivan & Co., 92 S. W. 51; Uncle Sam’s Loan Office v. Emery, 49 Tex. Civ. App. 236, 107 S. W. 1157; Oriental Bank v. Western Bank & Trust Co., 143 S. W. 1176; Gillet v. Bank, 160 N. Y. 549, 55 N. E. 292; Bank v. Richardson, 156 Mo. 270, 56 S. W. 1117, 79 Am. St. Rep. 528.

[5, 6] It is well established that the wrongful sale of the pledged property by the pledgee, so as to put it out of his power to redeliver it on payment of the debt, constitutes a conversion, and it has also been frequently announced by text-book writers and courts that an unauthorized sale by the pledgee to. himself does not change the relations of the parties, and therefore does not constitute conversion. It appears clear that, when the pledgor elects to assert that the relation still exists, the pledgee cannot be heard to say that it has ceased, and the pledgor is entitled to redeem the pledge.

[7, 8] It is also clear that when a sale is authorized, but the purchase by the pledgee is unauthorized, and he purchases in good faith, making the highest bid, such purchase would not constitute a conversion. But if such purchase be a nullity it can confer no rights upon the pledgee exempting him from being charged with conversion if he thereafter exercises a dominion over the pledge inconsistent with his relations thereto as pledgee and with the pledgor’s rights. When the sale is made in hostility to the rights of the pledgor, that is, in bad faith, in disregard of the pledgee’s duties as trustee, and the pledgee purchases at such sale and makes a claim of absolute ownership of the pledge, or claims the right to hold it as security for other debts than those for which it was pledged, it appears that he can, at the election of the pledgor, be charged with conversion of the pledge. Payne v. Lindsley, 126 S. W. 331; Luckett v. Townsend, 3 Tex. 119, 49 Am. Dec. 723; Watts v. Johnson, 4 Tex. 317; Soell v. Hadden, 85 Tex. 188, 19 S. W. 1087; Oriental Bank v. Western Bank & Trust Co., 143 S. W. 1178.

[9] Proof of tender by the pledgor of the amount due by him to the pledgee and of the latter’s refusal to accept such tender and return the collateral evidences a conversion. *438But a tender is’ not required where the pledgee asserts absolute ownership of the pledge in himself, or an intention to hold the same as security for the payment of debts for which it cannot under the contract of pledge be held as security. See the cases above cited and the following: Roberts v. Yarboro, 41 Tex. 453; Gillet v. Bank, 160 N. Y. 549, 55 N. E. 292; Uncle Sam’s Loan Office v. Emery, 49 Tex. Civ. App. 236, 107 S. W. 1156; Gaw v. Bingham, 107 S. W. 931; Memphis City Bank v. Smith, 110 Tenn. 337, 75 S. W. 1065; Hagan v. Bank, 182 Mo. 319, 81 S. W. 171; Dibert v. D’Arcy (Mo.) 154 S. W. 1116. Such a declaration is equivalent to a refusal to accept if tendered, and the pledgee cannot be heard to say that the pledgor should be deprived of any rights for taking him at his word. Where a wrongful sale of the pledge is made to a stranger, no tender need be made by the pledgor before filing suit. Mullen v. Quinlan & Co., 195 N. Y. 109, 87 N. E. 1078, 24 L. R. A. (N. S.) 511.

[10] Applying the foregoing principles to this case, we will consider whether the evidence was sufficient to go to the jury on the issue of conversion of plaintiff’s stock. Viewing the evidence from the plaintiff’s standpoint, it shows that the bank made the sale upon the very day that plaintiff was permitted by the president of the bank to believe that he would be given a few days’ time in which to pay his debt; that the sale was made for a grossly inadequate price; that no notice was given plaintiff of the sale; that it was made by the president of the bank, in his official capacity, to himself individually, without making any effort to sell the same to any one else, though having on that very day come in contact with directors of the company whose stock constituted the pledge. We think the evidence was sufficient to authorize a finding that the sale was not made in good faith and with that regard for plaintiff’s interests which the law requires. The question next arising is whether the sale was made to the pledgee itself or to a stranger. Any sale of the stock as between the bank and its president, if unauthorized by the directors, is void (article 530, Revised Statutes of 1911), and, even if authority had been conferred to sell the same, the sale to himself for a grossly inadequate price could be set aside by the bank. But, whether the sale as between said parties was void or voidable, the fact remains that by the acts of its officer, for which it is responsible, dominion was exercised over plaintiff’s property inconsistent with his rights thereto, in that said president claimed to own the same individually and notified plaintiff that he could not repossess himself thereof, except upon payment of sums of money for which such stock was not pledged, which he described as “the money that I am spending in settling up accounts of the company within the next 15 days.” Appellees say that, in fact, at the time when the suit was brought, no such accounts had been paid by C. J. Loe, and therefore plaintiff was only called upon to pay what was due by him. We do not think that plaintiff was called upon to investigate the matter. No offer was made to let him have his stock if he paid the amount due by him before any of such accounts were paid off, and Loe having asserted that he was the owner of the property, and having announced his intention of holding the same for the payment of other debts, neither he nor the bank can be heard to assert that he did not claim to be the owner, and that, if plaintiff had upon receipt of the letter offered to pay the amount due by him, his stock would have been returned.

The record further discloses that the witness Galrow testified to a conversation had by him with Loe, in which the latter attached still other conditions to be performed before plaintiff could repossess himself of his stock. Then taking this testimony as true, which we must do for the purposes of this appeal, we find that at both times dominion was claimed over the stock inconsistent with plaintiff’s rights.

We are also of the opinion that the transaction should be construed as a sale to a stranger; but, if it can be said that the bank had any possession or control of the stock after the transfer to O. J. Loe, then justice demands that it should be answerable for the conditions imposed by him as a prerequisite to plaintiff’s repossessing himself of his stock. Plaintiff could have brought his suit without any tender, but on March 11, 1912, he went to the bank, during business hours, and made a tender to the assistant cashiers of the amount due on his note and demanded that his note and stock be delivered to him. Appellees say this tender was made in bad faith because plaintiff knew that G. J. Loe was out of town. Such a conclusion is not necessarily deduced from the evidence. While Loe testified that he transferred the note to himself for a check for $900, at the same time that he bought the stock for $100 and credited such amount on the note, yet in the letters written to plaintiff he was not informed of the transfer of the note to Loe, nor have we noticed any evidence that he received any such notice prior to the tender made by him. It also appears that such note was in the bank, and readily found by the assistant cashiers, but the stock was not accessible. One of the assistant cashiers testified that he told plaintiff, at the time of the tender, the note had been transferred to G. J. Loe. No assurance was given him that his tender would ever be accepted upon the conditions named by him, namely, the delivery to him of his note and stock.

If the refusal of this tender, under the circumstances, be said not to furnish any evidence of conversion, then the fact that it was made and not kept up should not alter *439the positions of the parties. It should cer-; tainly not be given the effect of releasing the defendants from the consequences of a conversion, if they were at that time chargeable therewith, nor of requiring plaintiff to forego his action for damages upon an offer thereafter made to restore to him his property upon payment by him of his note. He lost no rights by his refusal of the offer to restore to him his property upon payment of his debt, whether such offer was made before or after suit was filed. A person dealing with another’s property so as to render himself guilty of conversion cannot, when he decides he was wrong, or when he sees trouble brewing, restore the property unless the person wronged is willing to receive the same. The option, whether to demand and receive the property, or to demand its value at the time of the conversion, rests with the person wronged, and the wrongdoer is not permitted to decide what remedy shall be chosen by the person wronged.

We sustain the first four assignments, all of which complain of the action of the court in peremptorily instructing the Jury as to the verdict to be returned, also those complaining of the charge of the court and the judgment rendered.

An offer by a person guilty of conversion to return the property converted constitutes no defense to an action for damages for conversion, as has been hereinbefore fully shown, and the assertion of such an offer should not be permitted to be pleaded nor proved when only actual damages are sued for; but when exemplary damages are prayed for, as was done in this case, such evidence is admissible in mitigation of such damages, and the offer may be pleaded and proved. Bitterman v. Hearn, 32 S. W. 341. Assignments 5, 7, and 8 are overruled.

Assignment No. 6 is sustained.

The judgment is reversed, and the cause remanded.

TALIAFERRO, J., did not sit in this case.

Rehearing

On Motion for Rehearing.

MOURSUND, J.

[11] Appellees, in their argument in support of their motion for rehearing, express the fear that we have been misled by the fact that they did not assign error to the trial judge’s instructing the jury that the sale of the stock was invalid, and say that such ruling was without their consent, but not objected to by them because the bank had, up to the time it parted with the title to the note and the pledge, been willing to deliver the same on payment of the note, and Loe had, after his purchase of the note and pledge, always been ready to deliver the stock upon payment of the note. We agree with appellees that the bank was willing up to the time it parted with the stock to deliver it to appellant upon payment by him of his note; but we cannot agree that Loe was always ready, after he acquired the stock and note, to let appellant have the stock upon the mere payment of the note. There is a letter written by him, as well as other evidence, from which a jury could well find that he exacted additional conditions Eo be performed by appellant in order for the latter to repossess himself of his stock. Ap-pellees contended in their brief that the wrongful sale of the pledge only constitutes conversion when the same is placed beyond the control of the pledgee, and that in this case the appellees did not place the stock out of their reach or control so that they could not redeliver it to appellant upon proper demand. In addition, it was contended that no sufficient tender had been made, and therefore there was ño conversion. These contentions both appear to have been predicated upon the theory that the sale of the stock was invalid, but that such sale should be lightly regarded, if not overlooked entirely, while great stress should be given to the fact that the defendants between them always had the stock, and it was within their joint power to produce it, and that King should have made a tender when Loe was present, and, failing to do so, he should not be heard to say that any conversion had taken place. We considered this theory, and found it without merit, but concluded that, if the holding of the stock by Loe inured to the benefit of the bank, then it appeared clear that the bank was chargeable with his assertions of ownership inconsistent with the rights of the pledgor.

Appellants now contend earnestly that the sale to Loe was not void, but merely voidable, and that the legal title to the pledge passed to Loe and the sale to him could not be set aside in a collateral proceeding, but a direct proceeding would have to be instituted for that purpose. They say: “Of course, the bank would probably be bound by the act of Mr. Loe, its president, in making the sale under the pledge if any wrong was committed thereby; but there is no contention in this ease, nor is there a scintilla of evidence to the effect, that Loe was purchasing the collateral for the bank or that the transfer of the note to Loe was not a bona fide transaction.”

[12] Considering the matter from the standpoint so urged, the stock was put beyond the reach of the bank, and Loe was the only one in whose power it lay to restore the same to King. In other words, as was stated by us in our former opinion, the transaction, so far as the bank is concerned, should be viewed as if the sale had been made to a stranger.

[13] Appellees contend that when the transaction is thus viewed it presents no cause of action in favor of King against either the bank or Loe for conversion, but merely an action to redeem the pledge. They cite a portion of section 748 of Jones on Pledges, *440which reads as follows: “An action of trover cannot be maintained by tbe pledgor to recover tbe value of stock wrongfully sold by tbe pledgee without a tender of tbe' debt' secured. Tbe wrongful sale of tbe pledge does not revest tbe immediate right of possession of tbe pledge in tbe pledgor, and therefore tbe latter cannot maintain tbe action either for tbe whole value of tbe shares or for nominal damages.” In tbe same section the following language occurs: “But in case tbe pledgee has put the securities beyond, bis reach by an illegal sale of them, it is said that tbe pledgor need not make a formal tender of tbe amount due, nor a demand for tbe securities, before bringing an action against tbe pledgee to redeem, or an action for tbe conversion of tbe securities.” Authorities are cited In support of both propositions. In section 571a of the same work tbe following language is found: “If a pledgee by an unauthorized sale puts it out of bis power to restore tbe property upon payment or tender of tbe debt secured, be is liable for its conversion without a demand and tender of performance by tbe pledgor. ‘The observation sometimes met with in tbe opinion of judges, and in text-books, that tbe pledgor is at liberty to treat an unauthorized sale of tbe pledged property as a conversion by tbe pledgee, must be taken to refer to such a sale as puts tbe property beyond tbe control of tbe pledgee. In cases of that kind tbe pledgor may charge tbe pledgee as for a conversion of tbe property without demand or tender of performance, though be is not bound to do so, tout may, by subsequent tender and demand, require tbe pledgee to account for tbe market value of tbe property at that time. And, of course, it is not the right of tbe pledgee to insist that bis wrongful sale constitutes a conversion, for that would enable him, if be were allowed to do. so, to take advantage of bis own wrong, and by bis own violation of tbe contract determine tbe time, and thus tbe measure of bis liability for its breach.’ ” The quoted portion is taken from tbe case of Glidden v. Bank, 53 Ohio St. 588, 42 N. E. 995, also reported in 43 L. R. A. 737 with valuable and thorough notes by tbe editor bearing upon tbe various questions arising in suits for conversion by reason of invalid sales by pledgees.

. Tbe same rule is announced by the editor of L. R. A. in vol. 6 (N. S.) p. 299, under tbe case of Austin v. Vanderbilt, 48 Or. 206, 85 Pac. 519, 120 Am. St. Rep. 800, 10 Ann. Cas. 1123, decided by tbe Oregon Supreme Court, in which tbe court said: “Tbe pledgee impliedly agrees faithfully to bold tbe pledge until tbe conditions have been performed upon tbe faith of which tbe eboses in action, goods, or personal chattels have been delivered to him. If, in violation of bis trust, be sells or disposes of tbe pledge, thereby putting it out of bis power to return tbe property, it would be useless to impose upon tbe pledgor tbe burden of tendering to tbe pledgee tbe payment of tbe debt, or tbe performance of tbe duty before be could maintain an action against tbe pledgee for tbe damages sustained by reason of tbe conversion, when it would be impossible for tbe latter to discharge tbe obligation which be bad undertaken. When a pledgee, by his overt act, violates tbe terms of bis agreement, so that it cannot be specifically enforced, he necessarily severs tbe fiduciary relations be assumed •towards the pledgor, whose remedy against him in this form of an action for tbe injury sustained, though treated as one for conversion, is in reality founded on tbe breach of tbe contract.”

To bold that a tender is necessary before any rights can toe asserted by tbe pledgor, after a sale by tbe pledgee, would mean that, if the pledgor was unable to pay tbe money or tender tbe same, be would be deprived of remedy, though tbe sale was made in gross violation of tbe duty which tbe law imposes upon tbe pledgee, namely, to exercise bis control of tbe pledge so as to subserve tbe interests of tbe pledgor as well as bis own. Tbe cases from our courts cited in our former opinion are in line with tbe authorities which do not require tbe useless formality of a tender when a conversion has already taken place and has been announced by tbe pledgee, or when it is beyond tbe power of tbe pledgee to restore tbe pledge.

Appellees do not question tbe correctness of tbe Texas cases which bold that a claim of absolute ownership by tbe pledgee-consti-tutes conversion, nor do they directly challenge tbe correctness of tbe decisions that a sale without authority to a stranger may be treated by tbe pledgor as a conversion and suit brought without tendering tbe amount due, but seek to make a distinction "between such cases and this on tbe ground that authority was given tbe bank to make a sale of King’s stock at private sale without notice. They contend that such a sale, even though wrongfully and fraudulently made, is merely a violation of tbe duty imposed by law to conduct tbe sale fairly and in good faith, and that tbe action is one for breach of contract, and tbe only remedy tbe setting aside of tbe sale upon payment of tbe debt

We cannot subscribe to such a doctrine. To so bold would mean that a bank could, under such a contract, when tbe debt is due, sell tbe collateral for a few dollars to its employes, without an effort to comply with its duty to seek to obtain a fair price, and thus appropriate tbe same to tbe use of third persons who would be entitled to bold tbe same until tbe pledgor paid off bis debt. Such a sale constitutes the exercise of dominion over tbe pledge inconsistent with tbe relations tbe pledgee justly sustains thereto, and tbe pledgor may treat tbe same as a conversion. In this case, if King’s testimony is true, he was, by Loe’s language and actions, lulled into a feeling of security on tbe very *441day that his stock was sold, and permitted to 'believe it would not be sold without giving him a few days’ time.

While appellees do not directly challenge the correctness of the decisions holding that an unauthorized sale to a stranger may be treated as a conversion and suit maintained without a tender, yet the cases and doctrine upon which they rely are those which are not in accord with said decisions, but announce the rule that before an action for trover can be brought the immediate right of possession must be vested in the pledgor by the payment or tender of the amount due by him. Appellees state the contention as follows: “Before it could be held that he (King) was entitled to maintain an action for conversion, it would have to be held that the bank, by reason of the sale, had destroyed the lien given to secure its debt and that neither it nor Loe had any lien on the property.” This technical rule relied upon by appellees would prevent the pledgee in all cases from suing for conversion unless he had paid fhe debt or tendered the amount thereof. When an unauthorized sale is made, the lien is not destroyed, nor is it destroyed by an assertion of ownership by the pledgee, or by his claim of right to hold it as security for other debts. It therefore appears to us that while appel-lees are seeking to distinguish this case from those where an unauthorized sale is made, or a claim of absolute ownership, the rule relied upon to do so would destroy the correctness of the holdings in those cases.

[14] Where a person buys pledged stock and his knowledge extends only to the fact that the same is a pledge, nothing but a suit to redeem, with tender of amount due, could be brought against him. Cook on Stock & Stockholders & Corporation Law, § 472. Loe does not occupy such a position. He knew all the facts and circumstances, and if the sale to himself was wrongful he is guilty of conversion, and can be sued therefor without any tender of the amount due on the debt. His subsequent or separate purchase of the note given by King cannot entitle him to the rights he would have had if the note had been sold him and the stock merely accompanied the same as collateral.

[15] The motives actuating appellant in suing for conversion instead of to redeem the stock are vigorously assailed by appellees ; it being charged that he is seeking to assert a claim for $8,000 for stock worthless at the time it was sold. If the stock was worthless, appellant has suffered no injury, and it should not be assumed that he will recover if such be the case, but he is entitled to have the issue tried, and, should it develop that his stock was deliberately and wrongfully sold for a grossly inadequate price without any effort to procure the real value, he is within his rights in choosing his remedy.

The motion is overruled.