Scott v. Lance

The opinion of the court was delivered by Poland, J. All the questions raised in this case arise upon the account of the defendant, produced in offset to the plaintiff’s account. 1. The first class of cases objected to consists of charges for money collected by the plaintiff on demands put into his hands by the defendant. It is undoubtedly true, that, when demands are placed in the hands of an attorney, or of any other person, for collection, without any agreement as to the mode of accounting therefor, so that the party must seek his remedy by the general rules of law merely, the money cannot be recovered in an action of book debt. But it is competent for the parties to agree, that moneys so received may be charged on book; and in very many cases it has been held by this court, that matters, not strictly in themselves chargeable on book, may, not only by the express agreement of the parties, but even by an agreement implied, merely from their course of dealing, be adjusted in that form of action. From the facts reported by the auditor we are of opinion, that the parties themselves so intended. The defendant has charged the notes themselves, instead of the money received by the plaintiff; but the auditor has allowed only such as were proved to have been converted into money by the plaintiff; and it has often been decided, that the mere form of the charge is not material. These items were therefore correctly allowed to the defendant by the auditor. 2. The next items of the defendant’s account are for corn and potatoes, which were left by the defendant on the place, when leased to the plaintiff, and which the plaintiff, by the permission of the defendant, consumed. We can see no possible objection to the allowance of these charges. They do not seem to have had any connection with the letting of the farm, as is urged by the plaintiff, but to have been a mere common purchase. These items were therefore correctly allowed. 3. The next items objected to are the several charges for manure [513] taken by the plaintiff. The auditor reports, that the defendant gave the plaintiff permission to draw away six loads of manure, and no more, and that the residue was drawn away by the plaintiff, without any consent, or permission, of the defendant, but under a pretended claim of right to the manure, as his own property, which the auditor finds to have been without any just foundation. The plaintiff’s act of drawing away the manure, beyond the six loads, seems, from the facts reported, to have been a direct tort, for which the defendant’s appropriate legal remedy would have been an action of trespass, or trover. It is urged by the defendant, however, that he should be permitted to waive the tort and bring assumpsit, and that the plaintiff, at least, should not complain of being called to answer for his wrongful conduct by an action ex contractu. But we do not understand this doctrine of waiving torts and sueing in assumpsit ever to have been carried to this extent in this state. The farthest it has gone has been, to allow the owner of property, when it has been tortiously taken and converted into money, to maintain assumpsit for money had and received, against the wrong doer; and this is founded mainly, as we think, upon the equitable ground, which is said to be the foundation'of that action, “ that the defendant has money in his hands, which in equity belongs to the plaintiff.” To carry the doctrine to the extent claimed would abolish all distinction between actions ex delicto and ex contractu, and we do not see any necessity for so wide a departure from what we deem to be the settled law upon this subject. These items, therefore, should have been disallowed, except the six loads, which the auditor allowed at three dollars. In connection with these items is the defendant’s charge for stone; which, for the reasons above given, should have been allowed at the sum of five dollars only, as the others were taken from the defendant’s land without permission from him. 4. The plaintiff also objects to several items of the defendant’s account, for various articles of produce, raised upon the defendant’s farm by the plaintiff, while carrying the same on for a share of the crops, upon the ground that these articles were the common and undivided property of the plaintiff and defendant, and that the defendant’s remedy for an appropriation by the plaintiff of more than his share should be by an action of account at common law, and not [514] by the statute action of book account. The auditor reports, in relation to these items, that the defendant took these articles, being a part of the common and undivided products of the farm, by the plaintiff’s permission. If the facts reported showed a sale of these articles in such a manner, as to work a severance of the common property, it would probably be no ground of objection to the charging them on book; but we think the facts reported do not come up to this. The plaintiff used more than his half of the joint property, by the consent of the defendant; this certainly cannot be a stronger case, than a sale of joint property by a part owner, by consent, and clearly then the action of book account would not lie. We think, that these items could only be adjusted in an action of account, to settle the whole matter of the joint interest in the letting of the farm and the products, and that to hold otherwise would be to destroy all distinction between the action of account and the book action. These items, therefore, as well as the item for cash paid on taxes, should have been disallowed to the defendant. 5. The item No. 28 was merely a claim for damages for the breach of contract to mow a piece of ground, and therefore not chargeable on book, and should have been disallowed. 6. The item No. 32, for use of pasture, was for use and occupation ; and there does not appear to have been any agreement by the parties, that it might be charged on book, and no charges are presented upon the part of the plaintiff, that were received in payment for this use and ocupation, and therefore, according to several decisions reported in this state, the charge should have been disallowed. The plaintiff’s account as allowed by the auditor was $82,81 Interest to June Term, 1848, 22,65 $105,46 The defendant’s account as the same should have been allowed by the auditor is $153,01 Interest to June Term, 1848, 59,61 — 212,62 Balance due defendant June Term, 107,16 Interest on same since, 5,90 $113,06 [515] The judgment of the county court was for the whole sum reported by the auditor, and this is reversed, and judgment must be entered for the defendant, on the report, for the sum of $113,06; and as the plaintiff has prevailed on some of his exceptions, he will be entitled to his costs in this court.