(dissenting),
I respectfully dissent from the majority opinion herein and I am of the opinion that the judgment of the trial court should be affirmed. The appellant contends that if Martin-Lane Company is to be required to honor the check held by appellant in the amount of $2,089.89 at all, it would be on the theory that title to the corn in question passed to Martin-Lane Company. Then appellant states that the crux of the lawsuit is the answer to the question of whether or not the title to the corn passed in Kansas. Since the appellant, Durant Milling Company, did not plead and prove the laws of Kansas, if they were relying upon the laws of Kansas, it will be presumed that the laws of Kansas are the same as Texas or at least, without pleading and proof, the laws of Kansas and the laws of Texas where the case was tried would control and be presumed, in the absence of such pleading and proof, that the laws of Kansas were the same as Texas on that issue. We think this is so well-established as a rule that no citation of authority should be necessary.
There is no proof in this record that Mr. Tunnell, manager of Durant Milling Company, had the authority to sign the name of Durant Milling Company to the check in question as endorser thereof as this would not be the usual and customary duties of a manager in carrying on the business of such milling company but, be that as it may, the milling company did not pay anything for the check or receive anything for endorsing the same when they endorsed the check. The milling company, if Mr. Tunnell had the authority to endorse the check by signing the milling company’s name on the check, became an accommodation party for the purpose of lending its name to J. W. Pitts and became liable upon the check as endorser. Section 29, Art. 5933, Texas Revised Civil Statutes. Then the milling company would be in no better position as to the check than J. W. Pitts.
It is well-settled law of this state that when one secures property by theft or swindling that he does not have any title *767thereto. In the case of King v. State, Tex.Cr.App., 213 S.W.2d 541, at page 544, it is stated:
“Wé remain- convinced that the facts are sufficient to warrant the jury’s conclusion that appellant came into the possession of the automobile by a false and fraudulent pretext, with the intent, at the time, of depriving the owner of the automobile of the value thereof and to appropriate it to his own use and did so appropriate the automobile, thereby establishing the crime of theft by false pretext. As supporting this conclusion, see, also, Roe v. State, 140 Tex.Cr.R. 387, 144 S.W.2d 1104.’'’
We think there is ample proof to sustain the finding of the trial court that J. W. Pitts knew when he executed his checks that they would not be paid. His actions in going to Durant to get the check here involved cashed instead of depositing the same in the bank to care for the checks given by him is an item of conviction. Pitts had paid no consideration for the check in question and had no legal right to the same other than the fact that Atkission sent it to him but it was not endorsed by Atkission, and was not, without Atkission’s endorsement, negotiable. We are of the opinion that there was ample facts to substantiate the findings of the trial court of theft and swindling especially when applied to the check. Pitts knew he was not entitled to the check even though it was sent to him by Atkission. Tunnell knew Pitts had bad checks outstanding and unpaid. If there was no theft or swindling as to the com, it certainly cannot be said that Pitts did not commit theft or swindling as to the check or the proceeds thereof. The appellee did what he thought was the proper thing to do in securing the injunction to protect the payment of the check in the hands of persons not entitled to recover upon the same and we think the restraining order and permanent injunction was properly executed to keep Pitts and those claiming through him from cashing a check they had no right to under this record. We agree that the trial court erred in granting the attorneys a fee of $75 but since the ap-pellee did not object to this and, believing that appellee was entitled to the proceeds of the check, we do not think that matter is before us.
Durant Milling Company was not a holder in. due course for value but was an accommodation endorser for Pitts. Surely if Pitts had still had the check in his possession under the facts herein, appellee could have stopped payment to Pitts as was done in this case as to appellant. Appellant, as we see this case, being an accommodation endorser of the check to Pitts, not for value or for any consideration, could not recover herein and for the further reason appellant held a check that was not a negotiable instrument and was not when it was endorsed by appellant.
Since Geo. F. Hall sued Martin-Lane Company for his debt for the corn and asked for orders restraining payment of the check in question and recovered only the amount of the check is not a question before us. The only issue is whether the court erred in refusing to permit the Durant Milling Company to recover upon the check in question and enjoining the .bank from paying the same and the fact that Durant Milling Company became an accommodation endorser of a check that was in the hands of a party that had no right to cash the same, it had no better rights than Pitts and the check in effect was nothing more than a stolen instrument in the hands of J. W. Pitts.
Therefore, we are of the opinion that the judgment of the trial court should be affirmed.