Appellant was convicted of theft by bailee. The indictment contains four counts, embezzlement of goods, embezzlement of money, theft by bailee of goods, and theft by bailee of money.
The facts show that appellant went to Fort Worth and engaged in peddling goods. He made a trade with a certain firm of merchants to furnish him money, or rather to pay for goods that he would ship to Fort Worth to be by him peddled and sold, and to hold such goods as their property subject to his taking them out and peddling them, for which he agreed to pay that firm ten per cent for their accommodation and advancement of money. He made a trade also with Corbett Company, who had two stores, one of which stores was under the control of Gauntt, by which he was to take their goods at agreed prices and sell them, for which he was to be allowed fifteen per cent commission, with the right to return unsold goods. These goods were to be peddled, as before stated. This business continued between appellant and Corbett Company for some time, appellant taking the goods on the contract terms as agreed between them. He received from Corbett Company and sold goods as per agreement. Several transactions of this character occurred to the satisfaction of Corbett Company.
The matter relied upon here is that Corbett Company, through Gauntt, from the store he controlled, let appellant have goods upon the agreed terms to be sold that day, and if not sold to be returned, but if sold the money to be paid to Corbett Company, or Gauntt, less the stipulated fifteen per cent commission.
The witness Gauntt was the alleged bailor or principal. Gauntt testified that appellant came into his store early in the morning and received merchandise on previously stipulated terms. Specifically he says: "I did not sell him the stuff but let him have it to sell or bring back and I was to pay him a commission for selling, as I had done on previous transactions, of fifteen per cent. He was to keep fifteen per cent of the value of the goods and pay me the balance. He had taken out the same character of merchandise that way before. Mr. Lee had taken out goods two times in the two weeks prior to this transaction. I sold thedefendant goods out of the Popular Store from September 25th toOctober 16th on two or more different occasions. I don't know whether Mr. Lee took the goods be bought from me to the Corbett store, but he may have. I did not sell the goods mentioned in the indictment to the defendant and never parted with title to them. He was eiher to return the goods or bring the money for them. Nothing particular was said about the understanding on this particular morning, as we had an understanding on two or three different occasions before
that. On these occasions when he would take the goods out he said I ought to give him some commission, and I said how about ten per cent, and he said that he wanted fifteen per cent, that he got that everywhere else, and I said all right then will give you fifteen per cent, and he took fifteen per cent off when he cameto pay for the goods." Gauntt was the alleged owner.
Corbett testified: "He (appellant) saw a dress in the window and said he wanted it. I told him I did not want him to take the stuff out and had told my brother a few days before that I did not want to fool with him any more as he wanted to buy stuff ata cut price, and a few days before that told my brother not to let him have anything else."
Gauntt's testimony is a little peculiar in that he swears he sold goods to appellant from September 25th to October 16th, and then swears he did not sell the goods mentioned and never parted with the title to them; that appellant was to return all goods not sold, and bring money for those he did sell. The fact stated by him that he did not part title with the goods is a conclusion rather than a fact and unwarranted by Gauntt's testimony. It was a conditional sale, or rather a contract of sale, or return of goods. When he turned the goods over to defendant, under the facts, to sell, as he had previously done, it was a contract of sale. Defendant could sell and retain his fifteen per cent, or he could pay for the goods at the stipulated price less the fifteen per cent. The return of the goods was but incidental; the sale of the goods was the central thought and controlling proposition. They did not, of course, make a trade for defendant to simply take the goods, carry them around for exhibition, just to be returned. Corbett Company looked to him to sell. They did not pay or agree to pay him fifteen per cent for exhibiting goods on the streets or in the reservation. Every fact excludes this idea. Appellant had sold and settled with them for the goods on divers occasions on the fifteen per cent commission sale basis. This was the end and purpose of the contract. Corbett Co. or Gauntt could not have recovered the goods from purchasers under such conditions. Appellant had the authority to sell, and whether he sold or not would not change the proposition of his right to sell. The rule stated by the Supreme Court of the United States in Heryford v. Davis, 102 U.S. 235, may be reiterated as applicable here, so far as this character of contract is concerned and the intention of the parties. The rule there stated is as follows:
"What, then, is the true construction of the contract? The answer to this question is not to be found in any name which the parties may have given the instrument, and not alone to any particular provision it contains, disconnected from all others, but in the ruling intention of the parties, gathered from all the language they have used. It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account. . . . It is quite unmeaning for parties to a contract to say that it shall not amount to a sale, when it contains every element of a sale and transmission of ownership." See
also Eason v. DeLong, 38 Texas Civ. App. 531[38 Tex. Civ. App. 531], and 2 Texas unreported cases, 480. The DeLong case, supra, reviews our statute with reference to contracts of similar nature. I do not care to discuss the statute, but refer to the DeLong opinion. The contract here at issue was between parties capable of contracting, which had been acted on and carried out according to its terms in all previous transactions as contemplated. The right to sell carried necessarily the right to transfer title. This right inhered in the right to sell. It ought to be axiomatic that a party who has the right to sell has the legal right to transfer title. An agent clothed with authority to sell can sell and convey the title. This contract, therefore, is, from that viewpoint, not a bailment. A bailment carries, under the statute under which appellant was indicted, the idea of the return of the identical property. That statute does not contemplate the right of a bailee, if he be a bailee, to sell or alienate the property. The borrower or hirer is not authorized by such a contract to sell property of the owner. It is contemplated only that at the end of the borrowing or hiring contract the identical property shall be returned to its owner. There is no authority to sell, and the term "bailment," under that statute, should be given the same effect and construed with the same meaning as specified in the terms "borrowing" or "hiring." "A sale by a mere bailee can pass no property as against the true owner of the goods, even to a bona fide purchaser, but if the owner has conferred upon such bailee authority to sell the goods, a sale made pursuant to such authority will convey a good title to the buyer." 35 Cyc., 362-363, and notes. It may be said that where the agent has been authorized to sell he may pass title. Quoting from the same authority on page 363 we find: "So, also, where the agent has been authorized to sell, the title of a bona fide purchaser is not affected by the fact that the agent's authority has been revoked if the sale is made and the property delivered before notice of such revocation, or by the fact that the power of attorney under which the sale was made was procured by fraud; nor is the title of a bona fide purchaser affected by the fact that the agent subsequently embezzles the purchase money, or that by reason of his fraud or misconduct the owner of the property fails to receive the proceeds of the sale." That these transactions were treated as sales is clearly shown by the testimony of Corbett as well as that of Gauntt as heretofore quoted. Corbett says he told his brother not to sell appellant from the Corbett Company store, because appellant wished to buy, or get the goods atcut prices, too low to suit him. This was a different business house from that controlled by Gauntt, though all owned by the same corporation. Gaunt treated his transactions as sales to appellant on stipulated conditions. It is said that, "In the case of a sale or return the property in the goods passes to the buyer at once subject only to a defeasance by a return of the goods," etc. 35 Cyc., 290. "If the buyer fails to return the goods within the time limited or within a reasonable time the sale becomes absolute." 35 Cyc., 290, and notes. Where goods are consigned at a
price certain, with a provision that the buyer may, if he fails to resell them, return them to the seller, the contract is one of sale with an option to rescind. 35 Cyc., 290, and note 19; 62 Neb., 77, 86 N.W. Rep., 906. See also 35 Cyc., 291, note 29, as to a consignment of goods for sale where the option to return unsold goods is held to be a sale. So with reference to credit sales. This may be fixed by contract as to definite time, or it may be uncertain in that respect, or where payments are to be made as sales occur. 35 Cyc., 267. So it is held that "a contract of sale which provides that the buyer may return to the seller all of the goods that remain on hand at a stated time, has been termed a contract of sale or return." 35 Cyc., 253 to 254, and notes. Under such conditions there is a selling by stated terms. This is not a bailment. "Contracts of sale or return are to be distinguished from bailments in that there is no absolute obligation to return the identical thing, but the buyer may at his option pay the price." 35 Cyc., 254, and note 86 for cited cases. There is to be observed a difference between bailments and conditional sales or sale or return or kindred conditions and stipulations. "The common test of bailment or sale is whether it is the intention of the parties that the thing delivered shall be returned. The transaction is a bailment if the identical thing is to be returned, although in altered form. If the receiver is not bound to return the identical things, but is at liberty to return something else, as a rule the property passes, and the transaction is in effect a sale or an exchange." 35 Cyc., 28 to 29, and notes for collated authorities. There was no contract here to return the identical goods except the unsold portion. But it was the purpose not to return the goods, but to sell, the return being only conditionally contemplated, and this was only as security to Corbett Company, or Gauntt. Appellant could return the goods or not. He could return unsold part of the goods and pay for those he sold, retaining his commission. He could pay for the goods whether he sold or not. This would execute the full purpose of the contract. Failure to return required him to pay the price, whether it was a cut price or not. The return of the identical goods under the bailee's conversion statute was not in contemplation under this contract. Selling does not mean return of the identical goods, and could not. It means a disposition of the goods and change of the goods into money or its equivalent. It means the payment of the selling price less the commission. The statute of theft by conversion means return of the identical goods loaned, borrowed or bailed. It does not mean return of something else in place of the borrowed, hired or bailed property.
An inspection of the law of theft by conversion shows it was not intended to infringe either the law of theft or embezzlement. Statutes with reference to embezzlement and the general law of theft, and especially where the goods are obtained by false pretext, are well known and understood. The statute under consideration here was specifically enacted to cover a missing link or hiatus where parties under whatever the contract may be termed borrowed or hired property and failed to
return the identical property. The embezzlement statute covers the ordinary fiduciary relations between the parties. The general law of theft by false pretext contemplated that the party had deceived the owner of the goods and obtained them fraudulently with the existing purpose of converting same to his own use. This statute was based upon the theory that the party obtained the goods by hiring, borrowing, etc., from the owner originally for the purpose of using it, and subsequently conceived and executed the fraudulent intent to appropriate. This did not carry the fiduciary relation with it that embezzlement does, nor false pretext as in theft. It was based upon the idea that both propositions were absent when the property was obtained, and that the intent to convert was formed subsequently or after obtaining possession. Since the case of White v. State, 11 Tex. 769, trouble has arisen over the fact that parties obtaining goods legally and subsequently converting them could not be punished. This statute was enacted to cover such cases. Before its enactment neither the law of embezzlement nor that of theft applied to such cases. To cover this hiatus the statute of conversion was enacted. It was not intended to infringe the other statutes, and the court should not so construe it, but on the other hand should so construe it as to avoid a conflict or apparent conflict, and thus uphold all the statutes. The Legislature evidently did not intend to repeal the embezzlement and theft statutes, nor to infringe those. This statute was enacted expressly to cover what neither of those statutes did cover. It was not intended to repeal them. It was a new statute to cover matters other statutes did not cover. The statutes ought to be construed so as to be upheld, and can be under this view. There is no reason why there should be a conflict, and can legally only be by court construction. They can all stand and fill the intent and purpose for which each was enacted. There is another rule to the effect that where particular matters in the statute are enumerated and are followed by a general statement, the general statement will be taken to harmonize in purpose and intent with the particular enumerations, and refer to and include matters of a similar character, and in this particular case the criterion of the statute is "borrowing" or "hiring" with intent to return the identical property. Ejusdem generis is what the books denominate or call this rule. This rule is not unfamiliar to the courts or to the profession. Construing these three statutes we look to the reason and the purpose of their creation and enactment and why the statute with reference to theft by bailee was enacted. Applying these rules to this particular statute, we find that it provides a punishment where the party becomes possessed of property by reason of "borrowing," "hiring" or "other bailment." Here the term "bailment" follows the particular words "borrowing" or "hiring." According to the rules mentioned, the general term "bailment" should be held to harmonize with the particular terms "borrowing" or "hiring" already mentioned. That rule being applicable here, the statute was intended to cover those things obtained to be returned
in kind to the owner as under the idea of hiring or borrowing. In such case there will be no parting of title, nor any purpose to part with title or granting authority to divest title out of the owner. The question of borrowing or hiring both contemplate that at the end of the contract the identical thing borrowed or hired is to be returned. It does not carry with it the idea that the borrower or hirer can dispose of the property or change its identity and thus return it. Nor is a condition subsequent to be found in a contract of borrowing or hiring by which a party may sell; if such be the case it ceases to come within the purview of the borrowing or hiring by bailee statute. If the party lending authorizes the party who borrows or hires to sell and dispose of the property on agreed terms, it ceases to be a hiring or borrowing under this statute. It then comes within the rule that the party had a right to sell or return the property itself, and in that character of case the borrowing or hiring is merged into a different contract, and is termed "a sale or return of the property." Where the owner turns over property to a party to be by him sold on terms stipulated by the contract, the theft by bailment statute should not and could not be held to apply. It was not intended to cover such cases. The right to sell recognized the right to pass the property and transfer the title. Thus construed, there ought to be no conflict between these statutory offenses. Viewing this case from the testimony of the State's side only, here was a contract by which appellant received goods at stipulated prices, or as some of the witnesses call it, cut prices, which were to be taken out by him and sold, and for which he was to receive a commission of fifteen per cent for the goods sold; the unsold goods to be returned. There is no question but what the purchaser would get title. It may be said further this was not only a transfer of the title to appellant or right in him to transfer title, but it was a contract that he could meet in several ways. He could sell the goods and pay the money; he could fail to sell the goods and return them, or he could sell part and not sell the others and pay for the unsold, or pay for all the goods and retain his commission, or he could retain all the goods at the price mentioned less his fifteen per cent. But in any event it was not contemplated that he should return the identical goods. If so his contract to go out and sell the goods for the money and return that to the owners was worse than foolishness. They had and were the owners of the goods already; they need not have entrusted them to appellant to sell if they did not purpose he should sell. It would be difficult to explain upon rules of sanity that appellant was entrusted only to take the goods to exhibit or advertise and then return to Gauntt. They all testified whenever goods were received by appellant he had the authority to sell, and, therefore, transfer the property. No question would be made, if he had not returned the money or the goods, that he would be responsible for having failed to comply with his contract, and it would be upon the ground that they had sold him the goods.
The defendant's side of the case was that the transaction was a credit
sale. If the jury believed this he was entitled to an acquittal. But it occurs to me the State's case is a sale of the goods with the condition to return the unsold portion. This also was in the nature and partook of the character of credit sales. I have tried to state as strong as it should be the State's case; or at least just as the State's witnesses place it in their testimony. There was no borrowing; there could be no hiring, but it was a sale to appellant with a right to return, holding him responsible for the goods. If it was a bailment under the statute of theft by conversion, the property would have been required to be returned in the shape that it was turned over to him. In other words, the identical property would have been required to be returned. For these reasons the writer is of the opinion that appellant is not guilty under the statute with reference to theft by conversion. He should have been acquitted.
The above was written as the opinion of the court, but my brethren, disagreeing with it, write as they have written affirming. I dissent and adopt what I wrote reversing so as to present some of my views for dissenting.
ON REHEARING. March 28, 1917.