66 Barb. 353 | N.Y. Sup. Ct. | 1873
By the Court,
One Graham, a carpenter •and joiner, of whose effects the plaintiff is receiver, entered into a contract with the defendant to put certain repairs on the defendant’s house. Graham was to fur- "
The lumber did not become the property of the defendant. There was no delivery of it with the intent to pass the title. Under such a contract the title to the materials prepared by the builder to affix to the freehold does not pass until they are so affixed. This was expressly decided in Johnson v. Hunt, (11 Wend. 135.) See also Andrews v. Durant, (11 N. Y. 40;) Low v. Austin, (20 id. 181.)
' Some doubt has been thrown over the question whether, in the case of a wrongful conversion of personal property, the owner can waive the tort and sue the wrongdoer in assumpsit as for goods sold and delivered, where the wrongdoer has not sold but retains the goods, by the obiter suggestions of some judges in this state and by some decisions in other states; but we think the better opinion is, that he may do so, at all events, where the wrongdoer has absolutely used the
The principle upon which this right to waive the tort and sue in assumpsit, rests, as we understand it is, that as a party cannot set up or take advantage of his own wrong, he cannot be permitted to say he is not liable for the value of the goods, or for the money received on the sale of them, for the reason that his act of appropriation was a tort. Of course an action for money had and received will not lie, where neither money nor its equivalent has been received. But we see no reason'' why the right to waive the tort and maintain assumpsit should not be applicable to the case where the defendant has actually appropriated to his own benefit and used up the plaintiff’s goods himself, as where he has sold them to another and received the money, though in the former case the action must be for the goods as sold/ and delivered and not for money had and received. If these views are correct they lead to a reversal of the judgment.
Judgment reversed and new trial ordered, costs to abide the event.
Mullin, Talcolt and E. D. Smith, Justices.)