The first assignment of error is:
"That the court erred in charging the jury peremptorily that this defendant was guilty of conversion under the evidence in the cause."
The plaintiffs pleaded as ground for liability against defendant:
"That defendant Pittman-Harrison Company received said car of peas and took possession of the same knowing that said draft had not *Page 582 been paid, and without order or authority from this plaintiff, and knowing that the defendant railway company was violating its agreement and contract in delivering said car of peas without bill of lading being presented and unloaded same in their warehouse at Sherman, Tex."
Fox Bros., under the bill of lading, directed and made it the duty of the railway company, while the peas were in its charge and control, to "allow inspection" of the sacks of peas in the car by Pittman-Harrison Company. This "inspection" was to be allowed before and without advance payment of draft and delivery of the bill of lading. Pittman-Harrison Company then had the right of "inspection" of the peas before they were legally called upon to finally accept or reject the shipment, and before and without advance payment of the draft and bill of lading. And it was proven practically without dispute that the railway agent, for the purpose of having the car "accessible to them [PittmanHarrison Company] for any proper inspection," placed the car of peas on the privately owned railway track of appellant adjacent to its warehouse. Moreover, Pittman-Harrison Company, it appears, accepted the placing of the car at this place, as a mere convenience to them, for the purpose at the time of making an inspection of the contents of the car. In this placing the car on the track mentioned the railway company did not violate its shipping instructions or any condition upon which the delivery for inspection only is authorized. It is not stipulated in the bill of lading in what particular place and manner the inspection could or should be made. Having general authority under the shipping contract, as the railway company did, to "allow inspection," it could not be said that the railway company exceeded such authority in violating of the shipper's right in consenting, if it chooses, and as the railway company did, to "allow inspection" at the place mentioned instead of at the railway depot. And neither could it be said that Pittman-Harrison Company in making inspection at its own place instead of at the railway depot was without authority to do so, and was acting in wrongful interference with the shipment. The inspection at this place by Pittman-Harrison Company would be under consent of the railway company having general authority to "allow inspection." The right of Fox Bros., as owners, were not at all interfered with. Having this authority, as Pittman-Harrison Company did, to make "inspection" of the peas, they could proceed to exercise that privilege in a reasonable manner, and in this connection it was proven without dispute that an inspection of the peas could not satisfactorily be made in a car. As a consequence of this fact, and with no other purpose than to inspect, it appears, the sacks of peas were taken from the car by Pittman-Harrison Company and placed in its warehouse, a few yards distant, as a temporary deposit connected with the inspection. If the removal of the peas from the car in order to inspect was as here consented to by the railway company, then it is quite immaterial whether the inspection was made on the platform or in the warehouse near by, so long, as here, as it was not the intention to receive and take final control as possession of the peas. As stated in 2 Hutchinson on Carriers (3d Ed.) § 733:
"The carrier may even permit the consignee, upon depositing with him the charges upon the goods, to take them away, with the understanding that in case they do not answer to the quality of the goods ordered by him he may return them and take back his money."
And it appears further from the evidence that after the inspection was made by Pittman-Harrison Company in the warehouse, Pittman-Harrison Company rejected the shipment because not in accordance with the order, loaded the peas in the original packages back into a car, and notified the railway agent. The railway agent, as he testifies, "accepted them" "when they were loaded back." The agent further testified:
"That car was not by me or under my authority delivered or turned over to Pittman-Harrison Company after it came in for any purpose other than the inspection. * * * If those peas were unloaded in a private warehouse of Pittman-Harrison Company on March 26 and retained there until April 8 or later, I would never relinquish control of them until I received the bill of lading. * * * I take it that the words `subject to inspection' would allow the privilege of taking it [the shipment] to the warehouse and inspecting it and delivering it back."
If, as here evident, it had never lost control over the peas, the railway company could "accept them" as done. It is evident that from the time of placing the car for inspection and until Pittman-Harrison Company notified the railway agent of their rejection of the shipment the railway company, through its agent, was holding dominion over the peas as against Pittman-Harrison Company. As against both Fox Bros. and Pittman-Harrison Company the railway company was still in the relation and under the responsibility of a carrier. And it is evident that Pittman-Harrison Company, in having possession of the peas as they did, did no act and exercised no control or dominion over the peas adverse or contrary to the possession or control of the railway company. It was not the intention of the railway agent and Pittman-Harrison Company to transfer possession and dominion over the peas except for the purpose of inspection, and this fact would negative any intention of "receiving" and "taking possession," as alleged, of the peas by Pittman-Harrison Company in a way inconsistent with the rights of Fox Bros. The railway company would be holding the peas for and in subordination to Fox Bros.' *Page 583 ownership. There was no damage or injury to the peas during this time. And the further fact that the peas remained in the warehouse from March 26 until after April 8 would not, in view of all the circumstances, fully establish a conversion of the goods. The contract in this case being for peas of a particular variety, the Pittman-Harrison Company, the vendee, was not obliged to receive and pay for those offered in the car unless they corresponded with the terms of the contract. Parks v. O'Connor,70 Tex. 377, 8 S.W. 104. The vendee is entitled to make such examination of the goods offered on the existing contract as will enable him to ascertain whether they will fulfill its requirements. 3 Sutherland on Damages (3d Ed.) § 667, p. 1950. The shippers, Fox Bros., even recognized that right, and could make no legal objection thereto. The inspection was delayed, it appears, by reason of the absence of a shipping list. When the shipping list was received from Fox Bros. several days later it was disclosed, it appears, that the peas in the car were not entirely in accordance with the contract or order. Appellants then advised Fox Bros. of the difference between the peas shipped and the original order or contract, and at the same time made a proposition of adjustment of the differences and made tender of money to that end only. This letter is consistent with the plain notice to Fox Bros. that appellants had found on inspection that the contents of the car were not in accordance with the order it had placed with them, and that appellants would accept and pay for such portion of the contents, if Fox Bros. would agree thereto, as did come up to the specifications contained in the order, and that appellants could not and would not accept the entire shipment. When Fox Bros. through their attorney wrote that this was unsatisfactory, appellants promptly reloaded the peas. This could not be called "conversion," because in no way did appellants take the peas and use them for their own use or purpose, or interfere with or claim or exert possession or dominion over them. "Conversion," as defined, "is any distinct act or dominion wrongfully exerted over one's property in denial of his right or inconsistent with it." 2 Cooley (3d Ed.) p. 859; Railway Co. v. Porter, 183 S.W. 98; Crawford v. Thomason, 53 Tex. Civ. App. 561,117 S.W. 181, and appellants had mere possession of the peas for inspection purposes only under consent of the railway company and under a contract justifying it. It was not wrongful to have possession of the peas for inspection purposes, as here, before paying draft, because authorized by the contract. The cases of Baldwin v. Davidson Co., 127 S.W. 562, and Crawford v. Thomason, 53 Tex. Civ. App. 561,117 S.W. 181, are, we think, quite different on the facts from the instant case and are not applicable. In each of these cases there was a taking and appropriation and dispossession. In the case of M., K. T. R. Co. v. Seley, 31 Tex. Civ. App. 158, 72 S.W. 89, the railway company parted with the entire control of the property, which was not done in the instant case. It is concluded that the court erred in giving the peremptory instruction.
We have considered the other assignments, and think they should be overruled.
Judgment is reversed, and the cause remanded.