Stearns v. Dillingham

[627] The opinion of the court was delivered by Bennett, J. The law is too well settled, to admit of discussion, that, to enable the owner of goods to waive the tort and sue in assumpsit, where they have been wrongfully taken from him, the goods must have been converted into money. The rule is the same, where the trespass consisted in breaking the plaintiff’s freehold and cutting and carrying away the trees standing thereon. The trees must have been sold by the defendant. If, however, in England, the defendant, when sued in assumpsit, elect to bring money into court, under a rule obtained for that purpose, this would conclude him from objecting to the form of action. In effect, it would be an admission of the contract, as set up in the declaration. Bennett v. Francis, 2 B. & P. 550, is of this character. Probably the same result would follow from a plea of tender. The plaintiff, in the present case, was guilty of breaking the defendant’s freehold and depasturing the same. The defendant cannot, of his own mere motion, waive the tort, and sue in assumpsit for the pasturing of the plaintiff’s sheep. To authorize this, there must have been what would amount to the consent of both parties, that it should be considered as matter resting in contract. While goods, which have been wrongfully taken, are in the custody of the defendant, the action may, by contract, be converted into an action for goods sold and delivered. This is in accordance with well established cases; and probably the true ground upon which they rest is, that the subsequent assent, to treat the matter as resting in contract, has relation back to the time the goods were taken, and, in legal effect, converts it into a sale of the goods, at the request of the defendant. Is there enough in this case, found by the auditor, to convert the defendant’s claim into contract? If not, it must still rest in tort. The plaintiff’s sheep from time to time broke into the defendant’s lot through the plaintiff’s fence. Word was sent to him to take care of them ; but he did not, and the sheep continued to break in, and the defendant continued to turn them out, as well after the word was sent, as before, — though he made no more personal complaint to the plaintiff about them. When word was sent to the plaintiff, to take care of his sheep, he sent no word back to the defendant, but simply remarked, that he did not know what he should do with [628] them, and that he expected he should have to pay Dillingham for the running of his sheep in his pasture. These facts do not show any assent to make the pasturing of the sheep matter of contract. The expression, that the plaintiff expected he should have to pay Dillingham, might well refer to his liability as a tort feasor, and I think did. He sent no word to the defendant about the sheep, and the defendant continued to turn them out, when they got in, as before. There are no facts reported by the auditor, from which it can be claimed, that the parties understood, that the plaintiff was to be liable upon any implied promise to pay for the pasturing of his sheep. We think, then, this claim cannot be allowed to the defendant in this action, and the judgment of the county court must be reversed; and, disallowing this item, judgment must be entered for the plainiff for $ i0,?2, and interest on that sum, and costs.