Andy Machinery Co. v. Hofstadter ( 1986 )

OPINION ON APPELLANT’S MOTION FOR REHEARING

On rehearing, appellant urges that the Court should not have affirmed the portion of the judgment requiring it to reimburse Strahan. Appellant cites the principle that “one who purchases stolen property from a thief, no matter how innocently, acquires no title in the property; title remains in the owner.” Olin Corp. v. Cargo Carriers, Inc., 673 S.W.2d 211, 216 (Tex.App.—Houston [14th Dist.] 1984, no writ). Appellant asserts that we are requiring a rightful owner to reimburse one who has purchases from a thief.

We have no quarrel with the law appellant cites. However, appellant has failed to demonstrate its applicability to this case. Although appellant pled ownership, our inspection of the record shows no evidence that it is or was the owner at the time Hofstadter converted the jewelry, or at the time of trial. The record supports, at best, that appellant was a conduit through which Hofstadter obtained possession.

Appellant had the burden to prove its ownership of the jewelry to recover for conversion. Branham v. Prewitt, 636 S.W.2d 507, 512 (Tex.App.— San Antonio 1982, writ ref’d n.r.e.); Groves v. Hanks, 546 S.W.2d 638, 647-48 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.). The evidence of ownership indicated that the jewelry was pledged to Alamo Bank, a non-party, as collateral for a loan. Alamo Bank thus had the right of possession. The appraisals were made for Alamo Bank, and declare the jewelry the property of Alamo Bank. No evidence explains why the jewelry was offered for sale or whether appellant repaid the loan. The evidence is that the bank allowed appellant to show the jewelry, and that appellant allowed Hofstadter to show it.

In spite of the lack of evidence of appellant’s right to possess the jewelry, Stahan did not ask for a reversal on appeal, but only for affirmance of a judgment which reimbursed him. Because of appellant’s failure to carry its burden, it can hardly complain of the trial court’s resort to equity. We OVERRULE appellant’s motion for rehearing.