Fratt v. Clark

12 Cal. 89

• Court: California Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

Terby, C. J.,

delivered the opinion of the Court—Baldwin, J., concurring.

This is an action in assumpsit for the value of certain cattle. The evidence shows that the defendant, who was a butcher, unlawfully and without authority took plaintiff’s cattle, which he slaughtered and sold to various persons.

The appellant objects that the evidence does not sustain the allegations in the complaint. The objection is not tenable. It is well settled, that where a person takes and sells the property of another, without authority, the party aggrieved may waive the tort and sue in assumpsit for the price received at such sale, or for the value of the property so taken. The rule is thus expressed in Burley v. Taylor, 5 Hill, 582, by Mr. Justice Cowan : “ If trover would have lain, it follows that an action for money had and received will lie for the price or for the value as goods sold and delivered at the election of the plaintiffand a great many authorities, American and English, are cited in support of the doctrine.

Judgment affirmed.