ON MOTION FOR REHEARING.
LATTIMORE, Judge.— Appellant moves for rehearing upon the one ground that the court below erred in not responding to the exception to the charge set out below; and that we erred in not reversing for such failure. The exception is as follows:
“Defendant further objects to the court’s charge for the reason that it fails to instruct the jury that if the complaining witness, Alvie E. Dolen, and the defendant W. R. Bell were operating and had been operating upon the New York markets or the Chicago Grain markets, as a joint venture, she and he contributing their time, labor and ability and funds jointly and severally, share in the profits, that they were partners, and if the jury believes or has a reasonable doubt but that they were partners in this joint venture and business enterprise and that as such the said funds in question came into his possession in the course of such business then and there and therefore being performed, that they shall not convict.”
In so far as concerns the statement in said exception as to what should be in the charge, based on any supposition that Mrs. Dolen and appellant “were operating and had been operating upon the * * * markets, * * * she and he contributed their time, labor and ability and funds jointly or severally, * * * that they were partners,” — said statement was without facts to support it, and was contrary to the facts, as we understand them.
Up to the instant transaction appellant had acted for and as the employee of H. 0. Bedford & Co., a brokerage house in Big Spring. Clearly whatever of change in the relation, if any, between Bell and Mrs. Dolen as to the present transaction, grew out of the fact of representations of appellant to the Dolens that at times when the stock market advanced he, as agent for the Bedford Company, could not sell the stock of the Dolens, — listed and held by said company, — at the advanced price, because he could not get in touch with them and obtain authority to so sell; and that if they would place money with him authorizing him, as set out in the receipt executed by him, to invest and sell without the necessity of consulting with them, it would result greatly to their advantage.
*87Clearly there was and could be no claim on the facts that the court’s charge should have set forth that Mrs. Dolen and appellant “were operating and had been operating * * * as partners,” for such were not the facts, and this being true the trial court was fully justified in the refusal to amend his charge to conform to such exception.
We further note that as to the instant transaction, namely, the receipt by appellant of the money of the Dolens to be invested by him and sold for them without consultation or personal instruction, — regardless of what claim might have been made as to partnership, had the matter proceeded to an investment of Mrs. Dolen’s money and the sale of same for a profit, — the record before us is perfectly bare of any intimation even that there had been any purchase of stock or sale of same at a profit or otherwise. Nothing appears therein but the well supported proposition that in a few days, after Mrs. Dolen placed her money with appellant, he fraudulently converted and appropriated it; one thousand dollars of same the day he got it, thirty-five hundred dollars of same five days later, one hundred and ninety-five dollars five days later, and the remaining one dollar a few days thereafter. The bank official testified: “On the day this deposit was made Bell cashed a check for $1000.00 after such deposit. This was December 23rd. On December 28th Bell cashed another check' for $3500.00.” If we understand the testimony, appellant in person presented these checks and got the money.
This court seems to have consistently held that the making of an executory agreement out of which a partnership might have grown or come into existence but which called for or contemplated the doing of one or more things as a condition precedent to the creation of or obtaining profits or losses, and,— such condition or conditions are not complied with, — there is no such partnership as between the parties themselves. In Napoleon v. State, 3 Texas Crim. App., 522, we said:
“In this case the partnership was never consummated; the appellant did nothing in the performance of the conditional agreement. The precedent conditions were that he was to hire a car and furnish half of the capital, etc.; but, after defendant got Ransom’s money, he appropriated it to his own use and abandoned the enterprise. No one of the conditions precedent were performed by defendant. Then there was no partnership, and defendant had nothing over which to exercise control and authority as a principal or owner; but he stood simply as an agent of Ransom.
*88“Mr. Parsons, in his work on Partnership, page 6, says: ‘There must be a lawful agreement to enter into a partnership,’ and ‘this contract must be executed.’ See, also, on page 13, ibid. On page 14 he observes: ‘If the agreement of copartnership is executory and conditional, no partnership is created by it until all the conditions are fulfilled.’ See, also, Wilson v. Campbell, 5 Gilm., 383, and Howell v. Brodie, 6 Bing., 44.”
This is approved in Ray v. State, 48 Texas Crim. Rep., 122, wherein the court, through Judge Henderson, said:
“But it seems the authorities hold, if the partnership has not been executed, if any conditions precedent are to be performed before the funds become partnership funds, then the party misappropriating or misapplying such funds, may be guilty of embezzlement, although there is an executory contract or partnership. Napoleon v. State, supra; Com. v. Smith, 129 Mass., 104. In this case, if the evidence had shown that appellant (who it seems was not authorized to handle the funds of his employer, Lightfoot, unless in the actual purchase of cattle, and then only by check enumerating the number of cattle) had by any means come into possession of the funds of Light-foot, and without buying cattle with same had misapplied and converted such funds to his own use, he would be guilty of embezzlement, notwithstanding his executory contract of partnership with Lightfoot.”
Again in O’Marrow v. State, 66 Texas Crim. Rep., 416, we said:
“But do the facts as testified to by appellant raise the issue that he was a partner at the time he received the money? His contention is that there was a partnership agreement, and that he was to place in the stock certain property, go to Dallas and buy goods, and return and take charge of the store. The property he was to place in the stock was never shipped; neither did- he ever return. According to his theory and under his evidence, he never did those things he contracted and agreed to do. In our opinion, if the trade was in terms as contended by appellant, it was but a conditional agreement; and the partnership would not come into existence until he had shipped the property he was to place in the business, and had returned and complied with the other conditions of the agreement. At the time he recived the $150 from Mr. Morris to purchase the goods in Dallas, he knew there were cetain things for him to do, certain goods he then claimed to be in his possession to be furnished, and, if he failed to do so, the agreement, if made, would be no more binding upon Mr. Morris than upon him; *89consequently it would not be an executed contract until he had complied with the conditions that he says he was to comply with. Consequently, even under his statement, he never became a partner with Mr. Morris, and was not his partner at the time the money was delivered to him to buy goods in Dallas. (Napoleon v. State, 3 Texas Crim. App., 524.)”
The same principle appears upheld in Aldrich v. State, 29 Texas Crim. App., 394, in which the court said:
“A general rule, deduced from an able review of the authorities by a writer in the 13th volume of the Central Law Journal, p. 464, is: ‘It would seem that if the money comes into the servant’s hands, any act still remains to be done before he has the right to take his share, wrongful conversion to his own use is embezzlement; but if, on the receipt of the money, he is entitled to his share of commissions on the claim collected, it is not embezzlement.’ This rule is adopted in 6 American and English Encyclopedia of Law, p. 465.”
Also this principle is upheld in the cases of Lee v. State, 81 Texas Crim. Rep., 117; Allen v. State, 94 Texas Crim. Rep., 646; Summers v. State, 122 Texas Crim. Rep., 179, and others.
Applying this to the case at bar, we observe that appellant had no sort of interest in the money of Mrs. Dolen which was turned over to him for the specific purpose of investment in stocks, same to be thereafter sold, and if for profit, then and not until then, he, appellant, to get ten per cent of such profit. He did not buy any stocks with said money. The condition precedent to the partnership, if any ever could have been created, never arose, or was complied with. Appellant applied all the money that Mrs. Dolen turned over to him to his own use and benefit and bought no stocks. We see no reason for discussing the civil cases cited in appellant’s motion.
The motion for rehearing is overruled.
Overruled.