It appears to me the majority opinion, written by Justice Arnold, is based on the wrong theory.
An examination of the case-made at page 251 reflects the theory upon which the trial court sustained the demurrer of the defendant at the close of the evidence of the plaintiff.
"Mr. Horner: They just demurred on the ground of limitations, and you limit it to that? The Court: Yes. Mr. Horner: To which the plaintiff excepts."
Briefly stated, the action is in tort for the conversion of the property which plaintiff claimed and which he claimed to have pledged, and the evidence of the plaintiff conclusively shows that it is barred by the statute of limitations. The defendants did not introduce any evidence.
If the action were not barred by the statute of limitations, the other questions involved herein and the ones which the majority opinion is based upon should be submitted to the jury under proper instructions for its decision. *Page 425