LICION, J.
The charge given by the court below was free from error. Both in his writ and declaration, the plain*241tiff seeks to charge the defendant in ber representative character, and not otherwise. All the counts in the declaration aver a liability on the part of the intestate, and a promise to pay, by the defendant, as his administratrix. It is then, essentially a suit in which the estate of the intestate is sought to be charged with the payment of the demand, and had the plaintiff made such proof as to entitle him to recover, his judgment must have been de bonis intestatis. The proof, however, shows a case for which the plaintiff, under his declaration, is not entitled to recover against the estate of John S. Rice. There is no count on a special agreement between the plaintiff and John S. Rice; and yet the testimony establishes that one did exist, and its terms are of such a character that the plaintiff could not recover for a breach of them on the part of the intestate, under any of the counts in his declaration. In Snedicor, admr. v. Leachman, admr., 10 Ala. Rep. 330, in which a recovery was sought for the breach of an agreement very similar to the one proven in this case, and in which the plaintiff declared for work and labor done, the court says, “The plaintiff has sued upon the contract as a money demand ; the proof is, that he was to be compensated for his services by a part of the crop, and whilst this contract continues in force, it is manifestly unjust that the plaintiff should disregard it, and sue upon a quantum meruit.”
In another aspect of the case, the charge of the court was proper. The proof shows that the plaintiff was to have one-fifth of the crop grown on the plantation which he managed, and that the crop amounted to twenty-one bales of cotton, weighing four hundred and twenty-five pounds. This cotton never passed from the possession of the plaintiff, until after the death of John S. Rice. It was then taken by the defendant and sold. Here is a conversion by her, not in her representative capacity, but as an individual, and as against her the plaintiff may have his action of trover; or, as the cotton has been, sold, and its value, by this means, ascertained, he may, if he thinks proper, waive the tort and sue in assumpsit for money had and received to his use. Strother, admr. v. Butler, 17 Ala. Rep. 733.
The reasons assigned in support of the charge as given, are conclusive of the correctness of the action of the Circuit *242Court in refusing tbe charges asked for by the plaintiff. This case is unlike that of Peters v. Heydenfelt, 3 Ala. Rep. 205. In that case, both counts of the declaration disclosed that the services were rendered for Peters after the death of his intestate, and at his instance and request. The court says, “ The declaration shows very conclusively, that the action is founded on a contract made by the administrator, by which the estate could not be charged in this action, but for which he is individually responsible.” In the case under consideration, the declaration, in all its counts, charges the contract to have made with the intestate. The cases are, therefore, utterly dissimilar, and the rule in one would be misapplied if extended to the other.
Let the judgment of the Circuit Court be affirmed.