¶1Dissenting Opinion by
¶2The defendant was charged with having fraudulently converted to his own use two promissory notes, belonging to Zentz, the prosecutor, contrary to the provisions of the Act of May 18, 1917, P. L. 241.
¶3*456That he had received from the prosecutor two notes signed by the latter and endorsed by a third person, in connection with an automobile transaction, and had had them discounted, was undisputed. The important issue of fact in the case was whether the defendant was to hold the notes until the transaction was consummated, or, was entitled to have them discounted and use the proceeds. If the latter, he could not be convicted of the offense charged against him.
¶4The prosecutor’s testimony was indefinite and to some extent conflicting. He testified on cross-examination, in part, as follows: “Q. What did you give him the notes for? A. For the purchase of a 1918 Cadillac car. The Court: You mean, in the payment of it? A. The agreement was, your Honor, that Mr. Ryder was to take $25 a week, being payment for that car, and these notes were to be held by him, and he was to have them discounted as a director of the-National Bank. The Court: I mean, did you give the notes to pay him for the machine? A. Yes, sir. The agreement was if the machine was not perfectly satisfactory when I went down to see it I was to get my paper back the minute we left there, and Mr. Ryder never lived up to either promise.”
¶5Just what this testimony meant was for the jury, not the court. If the notes became Ryder’s, or he had the right to discount them and use the proceeds, he could not be convicted of fraudulently converting them because he failed to return them or their proceeds, when the automobile subsequently proved unsatisfactory. The Act of 1917 does not cover such a situation: Com. v. Bixler, 79 Pa. Superior Ct. 295.
¶6Nevertheless, the learned trial judge charged the jury as follows: “Mr. Zentz testified that Mr. Ryder, the defendant, told him his brother had a car up in New York State that could be bought1, and that he gave him these two notes as security for the purchase money, to be paid at $25 a week, provided that he approved or accepted the, car, and it was as represented. His wife corroborates *457him in this. At least, she says that they refused to take the car and that Mr. Ryder showed her one of the notes subsequently, and said that if they were not satisfied to accept the car he would return both, notes. Now if you find these to be the facts, and in the face of it that Ryder used these notes, had them discounted, and used the proceeds, he committed the offense charged in the indictment.” This was all that was said in reference to the Commonwealth’s evidence. He also charged the jury: “You will consider all the testimony, and if you find that these notes belonged to Mr. Zentz, that they were not to be used by Mr. Ryder, not to be his property, and that he has had .them discounted, and appropriated the proceeds to his own use, then you should convict him.”
¶7In view of Zentz’s own testimony that the notes were given in payment of the automobile and that the defendant was to have them discounted, the charge was not, in my opinion, an adequate presentation of the evidence and of the issues involved in the case.
¶8I would sustain the second and third assignments of error, reverse the judgment and order a new trial.