I dissent from the order denying a rehearing of this cause. Hot because I think the plaintiff failed to prove facts entitling him to a judgment, but because, in my opinion, the cause was tried in the superior court, and has been decided here, upon an erroneous view of the law.
The issues of fact were submitted to the jury under instructions to the effect that if the bank held the warehouse receipt, properly indorsed by plaintiff’s assignors, as security for a loan at the time defendants purchased and took possession of the wheat, the plaintiff could not maintain the action.
It is conceded, in the opinion of the court, that this theory was correct, but the judgment is affirmed on the *143ground that the defendants failed to prove the existence of the bailment at the date of the conversion. In my opinion the existence of such a bailment at the date of the conversion was no defense to an action to recover compensation for an injury to the reversionary interest of the pledgors, commenced after payment of the debt and return of the pledge, and, therefore, I am satisfied that the actual result of the litigation is just. But I cannot assent to the grounds upon which the decision of this court is placed. If the theory of the defense was a sound one it is clear to my mind that the facts were fully proved.