Lewis v. American Type Founders Co.

Luke, J. 1. The petition in this ease alleges that the defendant, without authority, took and carried away designated articles of personalty of a stated value, and that “petitioner brings this suit for a conversion of said property by the defendant and asks that a judgment be given him for the value of the same.” Held that the action sounds in tort, and the court erred in sustaining the general demurrer to the petition, upon the theory that it was in assumpsit. The plaintiff was bound by the rule that “Where one wrongfully takes the personal property of another and converts the same to his own use in some other manner than by a sale, and does npt receive any money therefor, the owner has a right of action ex delicto against such wrong-doer, and is restricted to this form of action.” Kirkpatrick Hardware Co. v. Hamlet, 20 Ga. App. 719 (2) (93 S. E. 226), and cit. 2. The court erred in disallowing the proffered amendment stating that the action was brought in trover for the unlawful taking and detention of the said property, that it was the property of the bankrupt, that a demand was made for it by the plaintiff and refused by the defendant, and that a verdict for damages was sought. 3. The foregoing is decisive of the exception to the judgment overruling the motion for a rehearing, based upon the original contention of the plaintiff in error that the action was’ ex delicto and not ex contractu. Judgment reversed. Broyles, C. J., and Bloodworth, J., concur.