Kelty v. Owens

3 Pin. 372, 4 Chand. 166

Opinion

Per Curiam.

There had been a conversion of the rails, as appears by the proof in this cause, and trover is the proper action, and not assumpsit or debt. In order to have sustained either of the last named actio'ns, the tortfeasor must have sold the rails and converted them into money, when the contract might have been affirmed, and the owner brought his action for the price. This is the doctrine in Massachusetts, Pennsylvania and New York, and we are not disposed to extend it here to mere cases of tort. We should hold, however, in cases where goods have been obtained by fraud, also where apprentices or servants work for a tortfeasor, or where the tortfeasor is dead, and the action of trover is lost, that assumpsit or debt would lie. The judgment must therefore be reversed.