This case was affirmed at a former day of this term. There was a written dissenting opinion. It is now before the court on appellant's motion for rehearing.
The facts are sufficiently stated in the opinions mentioned and will not be repeated. The principal question is, whether or not the facts will sustain a conviction of theft by bailee.
The statute on which the prosecution is founded is article 1348, P.C., as follows: "Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as prescribed in the Penal Code for theft of like property."
The contention of the prosecution is that appellant was a bailee, holding goods for sale on commission, and that of the appellant is that he was a purchaser of the goods with the right to return them. Under appropriate definitions of sale and bailment the issue was submitted to the jury. Appellant earnestly insists in an able brief and argument that neither a court nor jury would be authorized under the evidence to determine that appellant was a bailee, citing among others note 86, vol. 35, Cyc., p. 254; also pp. 289-290 of the same volume; Bank v. Kraus, 86 N.W. Rep., 906, 62 Neb., 77, and Hunt v. Wyman,100 Mass. 198; State v. Betts, 106 S.W. Rep., 64 (Mo.)
From the opinion in the last named case appellant in his brief quotes *Page 130 as follows: "The general proposition that a delivery of an article at a certain price, to be paid for or returned, constitutes a sale is not questioned. When the option is with the party receiving to pay for or return the goods received, the uniform current of authorities is that such alternative agreement is a sale (citing authorities). The class of contracts known as contracts of `sale or return' exists where the privilege of `purchase or return' is not dependent upon the character or quality of the property sold, but rests entirely on the option of the purchaser to retain or return. In this class of cases the title passes to the purchaser subject to his option to return the property within a time specified or a reasonable time, and if before the expiration of such time or exercise of option given the property is destroyed, even by inevitable accident, the buyer is responsible for the price."
The case from which appellant takes this quotation is a criminal case in which it was held by the court that the receiver of the goods in question was a bailee, and his conviction for fraudulently converting them was sustained, and from the same case we take the following quotation: "It will be seen from this definition that bailment need not always contemplate a redelivery of the goods to the bailor. In many cases when personal property is bailed by the owner to another it becomes of great importance to determine whether the title to the property had been transferred or not, and the facts in the case, construed in the light of the law, must determine whether the transaction is a sale or a bailment."
The definition of bailment given by Story in his work on bailment, 9th ed., page 5, is as follows: "It may be said that a bailment is a delivery of a thing in trust for some special object or purpose and upon a contract expressed or implied to conform to the object or purpose of the trust." And he says further: "According to both Lord Holt and Sir William Jones, a consignment to a factor for sale falls within the meaning of the term bailment; and, indeed, it is difficult to perceive why it should not, if a bailment be a delivery for some special purpose." The same author from authorities cited by him states the following rule: "So, receiving goods from another upon an agreement to sell and account for them to the owner or to return them as good as when taken, with interest, has been held to be a bailment and not a sale." To the same effect is Lawson on Bailments, note, pp. 9-10.
The 35th volume of Cyc., 254, discussing the distinction between a sale and a bailment, quotes from a note in the case of Sturm v. Boker, 150 U.S. 312, 37 L.Ed., 1093, the following: "A consignment of goods to the `care' of another, to be shipped to a foreign county and there sold to the best advantage, any loss resulting from sale below invoice price to be borne by the consignors, and profits in excess to be equally divided, and consignee to bear expense of shipment and to return free of charge any goods not sold is not a contract of sale or return but a bailment." And the text of 35 Cyc., p. 290, discussing the various subdivisions of bailments, draws a distinction between a sale *Page 131 or return of goods and a consignment for sale, using the following language: "Ordinarily where goods are consigned by one person to another for sale by the latter, the title thereto remains in the consignor; but whether the consignee is to be considered as a buyer or an agent depends upon the intention of the parties, and upon the real nature of the transaction rather than the language which the parties may have employed."
The case of Hunt v. Wyman, 100 Mass. 198, involved the question as to whether the contract under which a horse was delivered was a sale or bailment, and it was held to be a bailment.
In the case of Luddich v. American Co., 231 U.S. 522, 58 L.Ed., 345, where the question was whether a contract for the sale of goods on commission was a bailment or a sale, it was held a bailment in the following language: "We find that the agreement was really one of bailment for the purpose of sale with the right to return the unsold goods."
The Delaware case of State v. Brewington was a criminal case in which a conviction was sustained where the defendant was given money to have changed. The court says: "A bailment in such a case consists in the delivery of some personal property, the subject of larceny, by one person to another to be by him held or handled according to the purpose of the delivery upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who first delivered it or be otherwise dealt with according to his direction."
The case of Packard v. Wilson, 151 S.W. Rep., 211, is one in which the Supreme Court of Missouri again considered the distinction between a contract involving a sale or bailment, the particular contract being one in which goods were consigned for sale, and the conclusion reached was that the contract evidenced a bailment and not a sale.
In the Pennsylvania case of McCullough v. Porter, 39 Am. Dec., 68, the following language is used: "Were I to put my horse into the custody of a friend to be sold for a designated sum with permission to retain whatever should be got beyond it, it would not be expected that I had ceased to own him in the meantime or that my friend would not be bound to return him even without a stipulation should he have failed to obtain the prescribed price."
The case of Fleet v. Hertz (Ill.), 66 N.E. Rep., 858, passed upon a contract in which goods were delivered with a stipulation as follows: "which you agree to handle upon my account and hold the proceeds in trust, making settlement within 30, 60 or 90 days, as soon as the money may be collected," and it was held to constitute a bailment and not a sale of the goods.
In the Missouri case of Wilson v. Briebe, 100 S.W. Rep., 558, in passing upon a contract where goods were delivered with a stipulation that they might be sold by the receiver, unsold portions to be held subject to the order of the furnisher, it was held to be a bailment, the court using the following language: "The fact that such a contract *Page 132 provides that the difference between the agreed prices of the accounting and sale prices is to recompense him for the insurance, storage, commission and expenses does not constitute the contract an agreement of sale. It still lacks the obligation of the receiver to pay a purchase price for the goods and the obligation of the furnisher to transfer the title to him for that price."
Other cases to the same effect as those above mentioned are Lenz v. Harrison, 36 N.E. Rep., 567; Peet v. Spencer, 2 S.W. Rep., 334; Aetna v. Hildebrand, 45 Am. St. Rep., 194, and note.
In the case of Columbus Buggy Co., decided by the Federal Circuit Court of Appeals March 2, 1906, reported in 143 Fed. Rep., 859, that court passed upon the question and cited authorities, and from the decision we take the following quotation: "A contract between a furnisher of goods and the receiver that the latter may sell them at such prices as he chooses, that he will account and pay for the goods sold at agreed prices, that he will bear the expense of insurance, freight, storage and handling and that he will hold the unsold merchandise subject to the order of the furnisher discloses a bailment for sale and does not evidence a conditional sale. It contains no agreement of the receiver to pay any agreed price for the goods. It is not, therefore, affected by a statute which renders unrecorded contracts for conditional sales voidable by creditors and purchasers. The fact that such a contract provides that the receiver of the goods may fix the selling prices and may retain the difference between the agreed prices of the accounting and selling prices to recompense him for insurance, storage, commission and expenses does not constitute the contract an agreement of sale. It still lacks the obligation of the receiver to pay a purchase price for the goods and the obligation of the furnisher to transfer the title to him for that price. Sturm v. Boker, 150 U.S. 312, 14 Sup. Ct., 99, 37 L.Ed., 1093; John Deere Plow Co. v. McDavid (C.C.P.), 137 Fed. Rep., 802; Metropolitan Nat. Bank v. Benedict Co., 20 C.C.A., 377, 380, 74 Fed. Rep., 182, 185; In re Galt, 56 C.C.A., 470, 473, 120 Fed. Rep., 64, 67; Union Stock Yards, etc., Co. v. Western Land, etc., Co., 7 C.C.A., 660, 664, 59 Fed. Rep., 49, 53; Keystone Watch Case Co. v. Fourth National Bank, 194 Pa., 535, 45 Atl. Rep., 328; In re Flanders, 67 C.C.A., 484, 134 Fed. Rep., 560; Martin v. Stratton-White Co., 1 Ind. T., 394, 37 S.W. Rep., 833; National Bank v. Goodyear, 90 Ga. 711, 726, 16 S.W. Rep., 962; Barnes Safe Lock Co. v. Bloch Bros. Tobacco Co., 38 W. Va. 158, 164, 18 S.W. Rep., 482, 22 L.R.A., 850, 45 Am. St. Rep., 846; National Cordage Co. v. Sims, 44 Neb., 148, 153, 62 N.W. Rep., 514; Rosencranz Weber Co. v. Hanchett, 30 Ill. App. 283, 286; Harris v. Coe, 71 Conn. 157, 41 Atl. Rep., 552, 554; W.O. Dean Co., v. Lombard, 61 Ill. App. 94, 97; Horton Co. v. Melick,97 Iowa 564, 566, 66 N.W. Rep., 780; Lenz v. Harrison, 148 Ill. 598, 36 N.E. Rep., 567, 569."
A number of Texas cases dealing with the subject and construing the statute in question are cited in the original opinion in this case. *Page 133 Among them is the case of Himmelfarb v. State, 76 Tex. Crim. 173, 174 S.W. Rep., 586, in which, in a unanimous opinion, it was held that money delivered to the appellant with instructions to use it for a particular purpose and which he converted constituted him a bailee within the terms of this statute, and his conviction of theft by bailee was sustained.
It is suggested that under the rule of ejusdem generis a bailment for the purpose of sale would not come within the terms of article 1348, P.C., for the reason that under that rule only bailments similar in character to hiring and borrowing would be included. The application of this rule in a proper case has been frequently declared to be binding upon this court. Roquemore v. State, 59 Tex.Crim. Rep.; Muckenfuss v. State,55 Tex. Crim. 216. Analyzing this contention, we find that bailments are divided by the text-writers into three classes: (1) Those for the benefit of the bailor or a third person; (2) those for the benefit of the bailee; and (3) those for the mutual benefit of the bailor and bailee or one of them and a third party. Story on Bailments, 9th Ed., p. 7. A consignment of goods for sale, as we have tried to show, is a bailment. The statute uses the terms "contract of hiring or borrowing or other bailment." A contract of hiring is for the benefit of both the bailor and the bailee. That a consignment would come within the same classification, that is, be classified for the benefit of both the bailor and the bailee, seems clear, and this being true, under the rule of ejusdem generis, the term "other bailment" would include a bailment for sale.
It would seem, however, that the decisions of this court cited in the original opinion and in Branch's Ann. P.C., sec. 2524, would set this question at rest. From one of these, Malz v. State, 36 Tex.Crim. Rep., in which Henderson, judge, delivered the unanimous opinion of the court, we take the following quotation:
"The contention of the appellant is that the indictment — which in this case alleges, among other things, a pledge or pawn, and which the proof establishes — is not covered by the statute; that is, that the statute specifies a hiring or borrowing, and the expression `or other bailment' does not include other offenses, where the property may be in the hands of a bailee and converted, because the statute does not define the term `bailment,' and our law requires all offenses to be defined before a conviction can be sustained, there being no offenses outside of our statute. In other words, the contention is that the word `bailment' should be specifically defined; that is, that all characters of bailment should be specified. While it is true there are a number of different sorts of bailments, which are ordinarily classed into deposits, mandates, gratuitous loans, bailments for hire, and pledges or pawns, still each of said kinds of bailment is of the same general character, and is defined `to be a delivery of personal property to another, for some purpose, upon a contract, express or implied, that such purpose shall be carried out.' See Fulcher v. State,32 Tex. Crim. 621, citing 2 Bl. Comm., *Page 134 451; Jones, Bailm., 117, and Story, Bailm., sec. 2. In 2 Am. Eng. Ency. of Law, p. 40, `bailment' is defined as follows: `A transfer of the possession of personal property from one person to another, without a transfer of the ownership of it.' These are standard definitions of the term, and are well understood, and there can be no difficulty about the meaning of the term `bailment.' It is so plain that we apprehend that no person who receives the possession merely of any character of personal property in trust, upon some contract, express or implied, that the trust shall be performed in regard thereto, but knows that the said property is received in bailment, is not his own and is to be restored to the owner after the trust has been performed, no matter what the character of the trust may be. Indeed, under our statutes with reference to embezzlements, no question has ever been made with reference to the term `bailee,' as used in said statute, and it has been uniformly held that such term was sufficiently defined. Nor does the omission of one character of bailment, as a hiring or borrowing, restrict the meaning of the more comprehensive term `bailment.' It was a canon in the construction of criminal laws, under the common-law system, that penal statutes must be construed strictly. But our statutes authorize a liberal construction for the prevention, suppression, and punishment of crime. See Code Crim. Proc., 1895, art. 25. It is further provided `that this Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. And no person shall be punished for an offense which is not made penal by the plain import of the words of the law.' See Penal Code, 1895, art. 9. `Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning, and all words used in this Code, except where the word, term, or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.' Id., art. 10. Holding, as we do, that the term `bailment' has a well understood meaning, there was no necessity to further define the same in article 877, Penal Code."
It is insisted, however, that under the terms of article 5654, Revised Statutes, as construed in the case of Eason v. DeLong, 38 Texas Civ. App. 531[38 Tex. Civ. App. 531], 86 S.W. Rep., 347, the contract in this case is declared by statute to constitute a sale and not a bailment. Article 5654 is as follows: "All reservation of the title to or property in chattels, as security for the purchase money thereof, shall be held to be chattel mortgages, and shall, when possession is delivered to the vendee, be void as to creditors and bona fide purchasers, unless such reservations be in writing and registered as required of chattel mortgages; provided, that nothing in this law shall be construed to contravene the *Page 135 landlord and tenant act." This statute has uniformly been held to be for the benefit of lien creditors and bona fide purchasers.
The case of Eason v. DeLong, cited by appellant, was one in which a controversy arose between one who undertook to reserve the title to personal property which had been delivered to a third party and one who held a mortgage upon the property executed by the third party while it was in his possession. It was held that the reservation of title being unrecorded, the mortgagee being a lien creditor was entitled under the statute to a superior right.
The reservation of title as between the parties and against those who were not subsequent bona fide purchasers or lienholders, as we understand, been uniformly held effective. The Supreme Court in the case of Bowen v. Wagon Works, 92 Tex. 384 [92 Tex. 384], so holds. To the same effect are Phillips v. Parker, 30 S.W. Rep., 365; Mauser v. Tibbetts, 19 Texas Civ. App. 311[19 Tex. Civ. App. 311], 45 S.W. Rep., 972; Turner v. Cochran, 94 Tex. 480; Hall v. Keating, 33 Texas Civ. App. 536[33 Tex. Civ. App. 536], 77 S.W. Rep., 1054; Cameron v. Jones, 41 Texas Civ. App. 4[41 Tex. Civ. App. 4], 90 S.W. Rep., 1129; Stewart v. Miller, 144 S.W. Rep., 343.
Our understanding of the civil statute in question from the construction given it by the Supreme Court is that it was not intended to and does not affect the contract between the original parties, except in cases where giving effect to such contract would operate to the disadvantage of creditors and bona fide purchasers, and the present case, not being one in which their rights are involved, is one in which that statute does not operate on the contract, and the contract being one in which the jury was authorized to determine that the appellant was a bailee and having so determined under appropriate instructions, the motion for rehearing should be overruled, and it is so ordered.
Overruled.