Crow v. Boyd's Administrators

BARG AN, C. J. The facts of this case, so. far, as they are material to the question raised by the bill of exceptions, are these The plaintiff recovered in an action of detinue against one R. G. Boyd, a slave, and also damages for, his detention. The slave was delivered up to the plaintiff in satisfaction of his value, as assessed by the jury, but the damages for the detention have not been paid, and the estate of R. C. Boyd, against whom the recovery was had, is insolvent. After the institution of the suit in detinue, the slave performed service for the defendant’s intestate, in whose possession he remained for about two years; but it does not distinctly sppear under what circumstances the slave went into his possession, but it is manifest that it was not by virtue of any contract with the plaintiff, nor with his assent. The question arising out of the facts is, whether assumpsit will lie in favor of the plaintiff against the defendants to recover [54] the value of the services or labor of the slave during the time he was in the possession of their intestate. It is contended that inasmuch as the defendant’s intestate was liable to an action of trover or detinue because *he had the possession of the slave, employing him as his own property, that the plaintiff máy waive the tort and sue in assumpsit for the value of his labor. The action of assumpsit can be maintained only upon a contiact, expressed or implied by law, and will not lie to recover damages for torts or trespasses. It is true that if one convert the goods of another to his own use, and afterwards sell them and receive the money, an action for money had and received will lie against him at the suit of the owner. — Upchurch v. Norsworthy, 15 Ala. 705. But the extent of this rule of waiving torts and bringing assumpsit is confined to this: If the wrong-doer has sold the goods and received the money, the owner may elect to affirm the sale and to claim the price at which they were sold. His title to the goods entitles him to the price received for them, and thus the wrong-doer is considered as having received the money for the use of the owner. But if there has been a mere conversion of the goods, without any sale of them, assumpsit will not lie to recover their value, — Jones v. Hoar, 5 Pick. 285; Wellit v. Wellit, 3 Watts, 277; Pritchard v. Ford, 1 J. J, Marshall, 543 ; Sanders v. Hamilton, 3 Dana, 552. I admit that cases may be found which hold that the owner may waive the torL and recover the value of the goods in an action of assumpsit, although the wrong-doer may not have sold them.'' But when we reflect that the action of assumpsit will lie only upon a promise expressed or implied, and not to recover damages for torts or trespasses, we do not see upon what principle these decisions can be sustained, We must hold (if we sanction them) the broad principle that trover and assumpsit are concurrent remedies in all cases for the tortious conversion of the goods of another, This would be opposed to the first principles of pleading. The defendant is liable in an action of trover for the value of the services of the slave, but as it does not appear that he actually received any money for his labor, (which might entitle the plaintiff to maintain assumpsit for money had and received,) he cannot be made liable in this form of action. Let the judgment be affirmed. Judge Chilton not, sitting.