The offense is embezzlement; the punishment, two years.
Mrs. Garces testified that she made an agreement with appellant to remodel her house, paid him a down payment of $1,455.-00, that her house was remodeled and *249that she was making payments on the balance to someone in Brownsville. At the time the agreement was made appellant left with her a receipt which he signed personally and a Repair and Remodeling Agreement which bore his signature over the printed words “Approved, Contractor”. She said appellant was the only person she did business with and that she had no contact with anyone from a lumber company until shortly before the trial.
Larry Crockett, manager of South Texas Lumber and Supply Company of Donna, testified that he had been doing business with appellant for almost two years prior to the date charged in this indictment and that his oral agreement with appellant was that appellant was to locate homeowners who needed repairs and get them to execute contracts. As a matter of practice, these contracts were executed in triplicate. The first copy, which was left with the homeowner, was to bear appellant’s signature as the contractor; the other two copies were to be brought to his office and if he felt that the work could be done for the price set forth in the contract, he would then fill in the name of the Lumber Company instead of appellant’s name as contractor and obtain a credit report on the homeowner and send them to the lending institution for approval. If approved he would then prepare a Mechanics and Mate-rialman’s lien contract and note payable to the Company, and the Lumber Company was not bound to perform on the contract until all these steps had been taken. He stated that if he did not feel that the work could be done for the price set forth or if the loan company would not approve the loan, he would refuse to accept the contract or to be bound thereby.
He stated that on the Garces contract appellant led him to believe for a time that an $800.00 down payment had been made but that his company never received such sum. He stated further that he could not remember ever receiving a cash down payment from appellant during all their dealings together. The Company did perform the contract by permitting appellant to draw money for the purpose of paying his labor, by furnishing him material from the Lumber Yard and by paying the sub-contractors whom appellant selected.
On cross examination Crockett admitted that from none of the checks issued to appellant during the two year period did he deduct any sums for withholding or social security benefits. He admitted that appellant was doing business during this period under the assumed name of Guaranteed Building and Remodeling Company, had a telephone listing, maintained an office, had a checking account in such name and that appellant had given him checks drawn on such account. He stated that he had instructed appellant not to tell the people with whom he was doing business that he was working for the Lumber Company.
It was further shown that in appellant’s dealings with other homeowners appellant had led them to believe that he was the contractor to whom they should look if dissatisfied.
Appellant testified that he had always been and was on the Garces transaction an independent contractor and was under no obligation to pay the Lumber Company any of the down payment. His testimony and that of Crockett as to Crockett’s motive for initiating this prosecution and their complicated financial problems need not be set forth. Suffice it to say that at the time appellant received the Garces money the Lumber Company had no legal right to claim it because the Company was not bound on the contract.
In Fellers v. State, 138 Tex.Cr.R. 307, 136 S.W.2d 217, Judge Graves set forth the four well known propositions necessary to sustain a conviction for embezzlement and concluded with this rule: “It is also fundamental that in cases of embezzlement or theft title must be at the time the offense is committed in the injured person.”
*250Title to the Garces down payment was not in the .Lumber Company on the day appellant received and appropriated it because the Lumber Company had entered into no contract with Garces. It was appellant who was bound to perform on the contract and therefore he was entitled to the money which constitutes the basis of this prosecution.
Finding the evidence insufficient to support a conviction for embezzlement from the Lumber Company, the judgment is reversed and the cause remanded.