Florida Cent. & P. R. Co. v. Scarlett

91 F. 349 | 5th Cir. | 1899

PER CURIAM.

The question presented in this case is one of pleading, under the Georgia Code. Section 3811 of the new Code (section 2955 of the Code of 1882) provides: “When a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other.” All the Georgia authorities are to the effect that where goods have been taken in trespass, and afterwards converted by the taker through sale and delivery of the same, an implied contract to pay the owner is conclusively presumed, and all the'common-law authorities are to the same purport. The Georgia authorities and common-law authorities generally are contradictory as to whether such implied contract will be presumed when 1he goods tortiously taken have been otherwise than by sale converted to the use of the taker, so as to lose their identity. We fail to see any sound reason why the contract to pay the owner should be implied in the one case, and not in the other. Either the owner should be allowed to have back his goods, or to recover the value; and there is no good reason why damages for the unlawful taking may not be waived.

In our opinion, the law is correctly stated in 2 Greenl. Ev. § 108, as follows:

“And if one commit a tort on the goods of another, by which he gains a pecuniary benefit, as if ho wrongfully takes the goods, and sells them, or otherwise applies them to his own use, the owner may waive the tort, and charge him in assumpsit on the common counts, as for goods sold or money received, which he will not be permitted to gainsay.”

And particularly ought this rule to govern where, as in Georgia, the Code of 1882 provides:

“§ 3332 (3256). (3245.) Suits, How Commenced. Ordinary suits in the superior court shall be by petition to the court, signed by the plaintiff or his counsel, plainly, fully and distinctly setting forth his charge or demand, and no want of form shall be cause of delay if this article is substantially complied with.”

The case-made conclusively shows that the ties sued for in this case were taken by the plaintiff in error, applied to its own nse, and put beyond the reach of (he owners. The verdict of the jury and the judgment of the court condemning the plaintiff in error to pay aciual value for the same does substantial justice, and the plaintiff in error was neither surprised nor prejudiced thereby. Judgment affirmed.