
    SHUTTLE BROS. & LEWIS v. AMERICAN STATE BANK OF BURKBURNETT.
    (No. 2166.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1923.
    Rehearing Denied Oct. 3, 1923.)
    Factors <&wkey;52 — Sale by bank of diamond deposited by factor as security for personal debt held to render bank liable to principal for conversion.
    If B. had possession of diamonds as plaintiff’s factor, and pledged one of them to a bank to secure his personal debt, the bank, on refusal to- deliver the diamond to plaintiff and subsequent sale thereof, /¿eid-liable for conversion.
    Appeal from Wichitá County Court; Guy Rogers, Judge.
    . Action by Shuttle Bros. & Lewis against the American State Bank óf 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.
   BOYCE, J.

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. Whild the court did not 'ekpressly 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.  