Landis v. Wolfe

Mr. Presiding Justice Bigelow delivered the opinion of the court. The groundwork of the present action is the claimed right of appellee to recover in assumpsit, the value of the entire stock of goods which he claims appellant wrongfully took and converted to his own use; the action was not limited to such goods as appellant may have sold, used, or traded away, after he took the goods, and before the levy of the writ of attachment. If appellee’s contention should .be admitted to be that he was the owner of the goods, and appellant has wrongfully taken them and converted them so as to raise a trover liability, still, under the law of this state he is not entitled to recover in this action of assumpsit. As long ago as the case of Morrison v. Rogers, 2 Scam. 317, the law has been declared to be, that one whose goods have been wrongfully taken from him, or unlawfully detained, has no cause of action in assumpsit against the wrongdoer, unless either the goods have been converted into money, or into money’s worth, or there has been a subsequent promise to pay. This case and the principles which it lays down, has never been departed from by the Supreme Court; on the contrary, the decision has been followed by many adjudications of that court and the Appellate Courts in this state, in which the case is expressly approved; so stroftgly has this principle been enforced that in a case where there was a contract of sale which was void by reason of the fraud of the purchaser, and the seller rescinded the sale because of the fraud, it was held that assumpsit would not lie, but that .the plaintiff was driven to his action of trover or replevin, if the action were commenced prior to the time of the expiration of • the credit given in the void contract. Kellogg v. Turpie, 93 Ill. 265. In that case the rights of the plaintiff originated in an apparent contract of sale, and yet it was determined that if the plaintiff rescinded the contract, he could not appeal to it to show that the origin of his right was ex contractu,; in the case at bar there is no attempt to- show anything except that appellant wrongfully took and wrongfully detains the stock of merchandise in dispute, and by those facts 'it is s'ought to force upon him an involuntary purchase. This can not be done under the law as declared by the course of the decisions in this state. Where the defendant has actually used the property, as distinguished from taking and detaining it, there is authority in this state for saying that the action will lie. T. W. & W. Ry. Co. v. Chew, 67 Ill. 378; City of Elgin v. Joslyn, 136 Ill. 525. This case is in itself a good illustration why the distinction lying at the basis of the decisions, should be insisted upon. When the defendant wrongfully takes property, and either sells it, or trades it away, or consumes it, there is no difficulty in applying the rule which permits a plaintiff to waive the tort, and sue on a contract implied by the law, for in such a case the defendant has taken the final step which makes the proof consistent with the allegation of a contract; Cooley on Torts, pp. 91-95; but when the evidence merely shows the property has been taken and wrongfully detained without any further act appropriating it, where is there room for saving either that the defendant intended to purchase it or that-the law will imply the contract relation of a sale ? In this case the defendant may well have thought that the deed was changed against him without his authority, and that he would, as he did, regain the possession of the stock of merchandise, so as to compel appellee to give him a warranty deed, as he believed him- - self entitled to, and by this means (wrongful it may be) he would force the consummation of the contract of March 9th. His act of conversion reached no further than wrongfully taking and detaining the property, intending to hold it for the rightful owner when he should comply with the terms of the contract, as perhaps wrongfully construed by appellant; that such wrongful taking and detention may be sufficient for the recovery of the same amount in damages by an action of trover or trespass may be admitted. But how does the evidence tend to show a contract relation, created either by the act of the parties or by the law? Before the action of assumpsit can take the place of an action of trover, it must be shown that there is some further act of appropriation than the mere wrongful taking and detention—acts which are sufficient to maintain trover or trespass for the full value of the property. The law of the Circuit Court not being in harmony with the views herein expressed, and there being no evidence upon which an action ex contractu can be based, the judgment is reversed and the cause remanded.