1. Where goods are placed on consignment by the owner with his agent, to be sold by the agent to customers for the owner’s benefit at prices fixed in the contract of consignment, and the goods are “disposed of” by the agent and the “proceeds” of the goods are used by the agent in his business and lost, without the knowledge or consent of the owner, this does not constitute a wilful and malicious injury to the property, and the liability of the agent to the owner, arising therefrom, is not exempt from discharge in bankruptcy under exception 2 of § 17 a of the bankruptcy act of 1898 as amended. See 1 Collier on «Bankruptcy (13th ed.), 636.
2. The agent’s relationship to the principal, not being that of a trustee arising out of an express trust, but being that of a fiduciary relationship implied from a contract, which was one of bailment, the agent is not acting in such a fiduciary capacity as would exempt his liability from discharge in bankruptcy under exception 4 of § 17 a of the bankruptcy act.
3. There is no evidence whatsoever that the property was obtained by the *711agent by virtue of any false pretense or false representation, and therefore the liability is not exempt from discharge in bankruptcy on account of fraud under exception 2 of § 17 a of the bankruptcy act.
Decided February 29, 1924. Complaint; from Madison superior court—Judge W. L. Hodges. April 28, 1923. Application for certiorari was denied by the Supreme Court. Gordon & Gordon, Horace & Franlc Holden, for plaintiffs in error. Z. B. Rogers, J. L. Mayson, contra.4. The suit being upon a promissory note given for the purchase price of the goods consigned, in which the defendant filed a plea of discharge in bankruptcy, a judgment sustaining the plea was demanded and the judgment for the plaintiff was without evidence to support it. See, in this connection, 7 C. J. 398; 42 L. R. A. (N. S.) 1093; Ford v. Blackshear Mfg. Co., 140 Ga. 670 (79 S. E. 576); Moody v. Muscogee Mfg. Co., 134 Ga. 721 (68 S. E. 604, 20 Ann. Cas. 301); Walker v. Capital City Gro. Co., 28 Ga. App. 531 (112 S. E. 157).
5. The suit being upon promissory notes, and therefore an action ex contractu, and not a tort action for a wilful and malicious injury to property, is it such a claim as is exempt from discharge in bankruptcy under exception 2 of section 17 a of the bankrupt act of 1898 as amended ?
6. Also, did not acceptance by the creditor of a note in payment of the goods change the nature of any fiduciary relationship, if any existed, prior to the acceptance of the note, and create the relationship of ordinary debtor and creditor, and a debt dischargeable in bankruptcy? See Coleman v. Davies, 45 Ga. 490; Lawton v. Fish, 51 Ga. 647 (1); 42 L. R. A. (N. S.) 1093, note.
Judgment reversed on the main hill of exceptions; cross-hill affirmed.
Bell, J., concurs. Jenkins, P. J., dissents on main hill, and concurs on cross-hill.