Jones v. Hoar

The opinion of the Court was delivered, at this term, by Parker C. J. The plaintiff declares in assumpsit, and one count is for goods sold and delivered. By the agreement it appears, that the only ground for supporting this count is, that the defendant cut and took away certain trees from land claimed by the plaintiff, and for the purpose of the argument, actually owned by him. The proper action would undoubtedly be trespass for the injury to the land, or trover for the trees. But the plaintiff contends that he has a right to waive the tort, and charge the defendant with the trees as sold to him. Upon examination of the authorities cited, which are well summed up and commented upon by Strong J. in the opinion of the Court of Common Pleas, we are satisfied that the plaintiff cannot maintain this position.* There is no contract express or implied between the parties, and therefore an action ex contractu will not lie. The whole extent of the doctrine, as gathered from the books, seems to be, that one [290] whose goods have been taken from him or detained unlawtully, whereby he has a right to an action of trespass or trover, may, if the wrongdoer sell the goods and receive the money, waive the tort, affirm the sale, and have an action foi money had and received for the proceeds.* 1 No case can be shown where assumpsit as for goods sold lay in such case, except it be against the executor of the wrongdoer, the tort being extinguished by the death, and no other remedy but assumpsit against the executor remaining. Such was the case of Hambly v. Trott, referred to in Judge Strong's opinion. Mills, Jlshmun, and Miles, for the plaintiff. Bigelow, for the defendant. But the defendant paid money into court, under a rule, and did not distinguish as to which of the counts the payment was applicable. And this, by the authorities, is an admission of the contract as set forth in the declaration. Bennett v. Francis, 2 Bos. & Pul. 550. It is however considered as within the discretion of the Court to apply this rule or not, as equity shall require ; for it may happen that by mere inadvertency, where there are several counts, a general tender is made, when it is intended only to be made to one or more, hut not to all the counts. In the case before us there is a count upon a promissory note, and we have been satisfied that it was meant that the money paid should be applied to that count only, a litigation in regard to the price claimed for trees, and the right of action in relation to them, being always intended. So it was considered by the Court of Common Pleas, who gave judgment without any reference whatever to the tender, their attention not having been called to it by the counsel. We think therefore the defendant ought to be relieved from the effect of an admission which is the technical result of bringing money into court in the form used in this case. Leave is granted to amend the rule.1 Footnotes [1] See Gilmore v. Wilbur, 12 Pick. 124; 1 Chitty on Pl. (6th Araer. ed.) 113, 114. [*] The Court said they had also looked at a case in 3 Maule &. Selw., probably Foster v. Stewart p. 191. [1] See 2 Stark. Ev. (5th Amer. ed.) 600 to 603; Huntington v. American Bank, 6 Pick. 340 ; Stafford v. Clark, 2 Bingh. 377; Bulwer v. Horne, 1 Nev &. Man. 117; S. C. 4 Barn. & Adol. 132.