James v. Klar & Winterman, 12359.

• Decision Date: 11 June 1938
• Docket Number: No. 12359.,12359.
• Court: Texas Court of Appeals
• Parties: JAMES v. KLAR & WINTERMAN et al.

Page 625

118 S.W.2d 625

JAMES v. KLAR & WINTERMAN et al.

No. 12359.

Court of Civil Appeals of Texas. Dallas.

June 11, 1938.

Appeal from Dallas County Court; Tom Nash, Judge.

Suit by Mrs. T. J. James against Klar & Winterman, a partnership, and others, for an alleged conversion of two diamond rings. From an adverse judgment, plaintiff appeals.

Reversed and rendered.

John C. Walvoord, Jr., of Dallas, for appellant.

Emil Corenbleth and Sam Passman, both of Dallas, for appellees.

YOUNG, Justice.

Appellant (plaintiff in the trial court) originally brought this suit against defendant partnership and on their statutory bond, for an alleged conversion of two diamond rings, the property of plaintiff. Upon a hearing before the court and a development of the material facts, a plea of limitation was sustained to plaintiff's demand, judgment rendered that plaintiff take nothing, and this appeal followed.

The trial court filed findings of fact and conclusions of law, and from the former it is clear that Mrs. James (plaintiff) placed the rings in suit with a Mr. Fagan for purpose of sale in Dallas, with no authority to deliver the property to anyone who was not a purchaser. About June 1, 1933, said Fagan entrusted the rings with another, having in view a sale. This third party proved to be a thief, however, and disappeared after obtaining possession of the jewelry. With the aid of local police officers the rings were located in defendant's store (a pawnbroker's establishment), a loan of $30 having been extended thereon to the person who had custody of the rings. After the articles had been identified by Fagan as stolen property, defendant refused to turn them back to said agent without payment of the $30, which the latter agreed to do. This amount was not paid at the time and defendants retained possession thereof. A further finding of fact, in substance, was that said Fagan did not thereafter make any demand for possession of the rings, without payment of money, but promised defendants he would pay the amount demanded as soon as he could; Fagan having promptly advised plaintiff of the loss of the rings and the facts as to who was detaining the same, also that he (Fagan) would get the jewelry back for her. This agent of plaintiff never came back to defendants' store until August 1934, at which time one of the defendants, Mr. Klar, told Fagan "You are a long time getting around here", but that defendants still had the rings. There was no definite time limit agreed upon by either Fagan or Klar as to how long the rings were to be held by defendants pending payment of the redemption fee of $30. Defendants did not know of plaintiff's ownership of the two articles until the Fall of 1935, when she visited their store and so advised them; defendants dealing with Fagan as the owner at all previous times. Plaintiff testified that she offered to pay the defendants the $30 in October 1935, but found the rings had been sold on March 12, of that year, at auction sale and bid in by the defendants for $30, their records indicating the pledge of the two rings had been redeemed by this sale. After much dispute in the testimony as to value, the court fixed the same at $110, although plaintiff's evidence tended to establish their reasonable value in a much higher amount. The following pertinent conclusions of law were made by the trial court:

"I conclude as a matter of law that a cause of action accrued to plaintiff when defendant Herman Klar advised plaintiff's agent T. A. Fagan that he would not relinquish possession of the rings in question until paid $30.00, and when said Fagan immediately thereafter advised the plaintiff where the rings were in Dallas.

"I conclude as a matter of law that the plaintiff was entitled on June 1, 1933, or as soon thereafter as she was advised as to the whereabouts of her rings, to maintain a cause of action against the defendants for detaining her personal property.

"I conclude as a matter of law that the act of defendant Klar in detaining such rings until he should be paid $30.00 was an unauthorized, illegal exercise of the right of dominion over the property of another, such as would accrue a cause of...