dissenting. There is no evidence in the record that would justify submitting to a jury the issue of conversion on the part of the creditors. Terry disappeared November 22, 1949; his wife and daughter and Mrs. Cooper, a trusted employee, took over the business for Terry. In the circumstances they would have been derelict in their duty if they had failed to take charge of the business. In fact, they never permitted the store to close; they caused it to stay open and took complete charge, continuing to sell merchandise and collect accounts. It was more than a week after Terry’s disappearance that the creditors conferred with the wife and daughter. At that time the wife and daughter were in full charge.
Terry had committed an act of bankruptcy; the creditors could have filed an involuntary petition in bankruptcy, but instead of doing this they decided to go along with the Terrys to see if the matter could be worked out. The Terrys paid them $338.00 and the creditors offered certain suggestions as to how the business should be operated; but according to the undisputed evidence, the creditors have never received one penny in money or property except that which was paid to them by the wife and daughter, and this was used in the bankruptcy case and refunded to Terry at the termination of the bankruptcy proceeding.
After it was ascertained that the wife and daughter were not going to be able to pay the debts, a bankruptcy proceeding was instituted. The only thing taken out of the store by the creditors was a list of the accounts copied from'the records in possession of Terry’s family, who undoubtedly were acting as Terry’s agents at the time. Not to this day has Terry complained of the wife and daughter taking over immediately upon learning of his mysterious disappearance. No one contends that a mere list of names with 'the amounts owed copied from the account books is property subject to a conversion.
In giving plaintiff’s instruction No. 1 the court erred in assuming the wife and daughter were not acting as agents for Terry. This was over the specific objection of the creditors. Defendants were entitled to an instructed verdict; this was requested. Hence the creditors’ requested instruction submitting the issue of conversion does not preclude them from now raising the issue of there being no evidence to sustain a verdict finding a conversion. If it can be said now that appellants are limited to the question of whether there can be a conversion of a chose in action, their position is still not untenable, because at the time a motion was made for a directed verdict it should have been granted on the ground that there was no evidence to sustain a verdict for conversion. A bare list of accounts copied from the original which was left in the hands of Terry’s agents, his wife and daughter, is not property which is subject to conversion. Therefore appellants’ argument that the only issue is whether such a list is convertible is sound.
In my opinion the cause should be reversed and dismissed.