Chase-Haekley Piano Company delivered to L. W. Wiley two pianos on contract, which we construe to evidence a consignment for sale. Wiley mortgaged these pianos to appellee Clymer to secure the payment of the individual indebtedness of Wiley to Clymer for money borrowed and represented hy two notes, delivering possession of the pianos to Clymer, to be held until the notes were paid. Wiley represented to Clymer that he was the owner of the pianos, and Clymer made the loan and took the mortgages on the faith of this representation without knowledge that the Chase-Haekley Piano Company had any interest in them. The said company brought suit against Clymer to recover the pianos, and Clymer set up in his answer the mortgage executed by Wiley as stated, and asked for judgment on his notes and foreclosure of his mortgage lien on the pianos. This appeal is from a judgment for defendant, rendered on verdict by the jury under a peremptory instruction.
[1] We construe the contract under which the pianos were delivered to Wiley as creating the relation between the parties of owner and factor. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Stein Double Cushion Tire Co. v. Fulton, 159 S. W. 1013. The contract is very similar to that construed by the Supreme Court in the case of Milburn Mfg. Co. v. Peak, supra. The contract, therefore, did not fall within the provisions of. articles 5654 and 5655, R. S., in regard to chattel mortgages.
[2] It was the rule at common law that a pledge or mortgage of property held by the factor for sale, made by the factor to secure his individual indebtedness, could not be enforced against the owner of the goods, though the pledgee or mortgagee had no notice of the fact that the factor did not in fact own the goods, and took the mortgage or pledge oh the faith of his belief that the factor was the owner, unless the owner of the goods, by some acts other than the mere delivery of possession of the property to the factor, had estopped himself from denying the right of the factor to treat the goods as his own. McCreary v. Gaines, 55 Tex. 488, 492, 40 Am. Rep. 818; Renfroe v. Hall, 202 S. W. 218, a decision by this court not yet officially reported; Warner v. Martin, 11 How. 209, 13 L. Ed. 673; Mechem on Agency (2d Ed.) §§ 2509, 2511, 897; R. C. L. vol. 11, p. 761; C. J. vol. 2, Agency, § 68. As shown by these authorities, including the Texas authority referred to, this rule has been modified in England and many of the states of the United States by the adoption of the Factor Acts. No such legislation has been adopted in this state, and we regard the case of McCreary v. Gaines, supra, as controlling authority. No facts of estoppel against the Chase-ITack-ley Piano Company, other than the mere delivery of the pianos to Wiley under the contract, were shown. Under these circumstances the peremptory instruction in favor of the defendant was error, and if the facts upon another trial are the same as shown by the present record, a peremptory instruction should be given for the plaintiff.
[3] We cannot consider the affidavits filed by appellees in this court, to the effect that certain proceedings, as shown by the transcript as being had in the lower court, did not in fact take place. If the records of the trial court do not speak the truth, the proper place to take action to correct them is in that court. Boggess v. Harris, 90 Tex. 476, 39 S. W. 565; Willis v. Smith, 90 Tex. 635, 40 S. W. 401; Neville v. Miller, 171 S. W. 1111; Kimbell v. Powell, 57 Tex. Civ. App. 57, 121 S. W. 542.
Reversed and remanded.