Hutton v. Wetherald

5 Del. 38

• Court: Superior Court of Delaware
• Decided: May 5, 1848
• Status: Published

Opinion

The Court

permitted the question to be put for the present, subject, &c.

Toppen. At the sale to Hutton, I reserved this building for Wetherald. Hutton said he would give $60 for it; Wetherald asked $75; and said he would not take less. Hutton has since raised the building; put a story under it; and now uses it.

Bradford moved a nonsuit. The declaration has four counts: 1. for work and labor; 2. for goods sold and delivered; 3. for money lent; 4. for money had and received. There is no count to which the evidence at all applies, unless it is the count for goods sold and delivered. Admitting that the house is a chattel, the proof is not of a sale and delivery, but of a seizure by. Hutton, and the suit by Wetherald to compel him to pay for it, the plaintiff never having agreed to sell, nor the defendant to purchase. There is not only no contract proved, but the contract is disproved.

Whitely. I have the right to waive the tort in taking our house and converting it to his use, and sue him for the value.

nonsuited the pfaintiff. It is essential to support the count for goods sold and delivered, in an action of assumpsit, that there be a contract express or implied proved. A plaintiff may often waive a tort and bring assumpsit, as where there is a trespass and the trespasser sells the article, the owner may waive the tort and bring assumpsit for the money; or if a carrier suffers goods to be lost or damaged, the owner may bring trespass or ease. But in this case the evidence contradicts any contract expressly, and- the remedy of the plaintiff, if this were a chattel, was in trover for its conversion. *

Bradford, for defendant. Whitely, for plaintiff below.

Plaintiff nonsuited;

And a rule to show cause why the nonsuit should not be taken off was, after argument, discharged.

* The cases are reviewed in Jones vs. Hoar, 5 Pick. 289.—

Parker, Chief Justice.—The whole extent of the doctrine as gathered from the books, seems to be, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrong doer sell the goods and receive the money, waive the tort, affirm the sale, and have an action for money had and received for the proceeds. No case can be shown were assumpsit as for goods sold lay in such case, except it be against the executor of the wrong doer, the tort being extinguished by the death, and no other remedy but assumpsit against the executor remaining. Such was the case of Hambly vs. Trott, Cowp. 371 ; Maule Selw. 191-7 ; 1 Taunt. Rep. 112; 1 B. & Cress. 118 ; 4 lb. 8; 3 Camp. 351 ; Chitty Con. 23; 3 New Hamp. Rep. 386; 2 Gill & Johns. 342; 10 Mass. Rep. 433.