Brittain v. . Payne

24 S.E. 711, 118 N.C. 989

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Clark, J.:

Where property is tortiously taken and sold, the owner may waive the tort and maintain an action to recover the money realized from the sale by the defendant. Lumber Co. v. Brooks, 109 N. C., 698; Wall v. Williams, 91 N. C., 477. And this is clearly what the plaintiff did by his complaint in this case. Every intendment being in favor of jurisdiction, if the complaint could have been construed as being either for the tort or to recover the money received by the defendant, this being an action before the justice, the Court would construe it to be an action on the implied contract in favor of the jurisdiction. Lewis v. Railroad, 95 N. C., 179; Stokes v. Taylor, 104 N. C., 394; Fulps v. Mock, 108 N. C., 601.

Error.