Fuller v. Duren
36 Ala. 73
Ala.
1860
Check Treatment
R. W. WALKER, J.

Inasmuch as assumpsit lies only upon a promise, express or implied, and not to recover damages for torts or trespasses, a mere conversion of the goods of the plaintiff, without any sale of them, will-not support the action. The doctrine of waiving a tort and bringing assumpsit is confined to cases where the defendant has disposed of the plaintiff’s property, and received *77-either money, or some article or thing as money. — Pike v. Bright, 29 Ala. 336 ; Crow v. Boyd, 17 ib. 51; Strother v. Butler, 17 ib. 733. If the property has been sold, it makes no difference whether the price is received in money, or in a chattel at an estimated price, for money. Arms v. Ashley, 4 Pick. 71; Mason v. Waite, 17 Mass. 560; Stewart v. Conner, 9 Ala. 813; Cameron v. Clarke, 11 ib. 259.

But there is a material distinction between a sale and an exchange, or a bargain of barter; and where one chattel is exchanged for another, no price being attached, it is not a sale. — Gunter v. Leckey, 30 Ala. 596. The transaction by which the defendant disposed of the filly, was •strictly an exchange, not a sale. There is nothing from which we can infer that the defendant received the horse he obtained in exchange as so much money, for it does not appear that the value of either chattel was measured in money terms; nor is the fact, that the defendant paid the plaintiff some $25 or $30 on account of her interest in the filly, at all inconsistent with the idea, that he had not sold the property for money, or for anything else which was taken as money.

If it was shown, or could be fairly inferred from the evidence, that the horse substituted for the filly had been sold by the defendant, the: plaintiff would, perhaps, be entitled to recover in this suit. But the bill exceptions expressly negatives this, and repels any inference that the horse had been converted into money, by the explicit statement that “the defendant had not received any money for the filly, or the one he swapped for.”

If, therefore, the gravamen of the action is the conduct of the defendant, first in working the filly on his farm, and then in exchanging her for a horse, which he appropriated to his own use, there can be no recovery in assumpsit. — Willet v. Willet, 3 Watts, 277; Jones v. Hoar, 5 Pick. 285; 6 Rich. 159.

[2.] If it be said, that the facts supposed in the charge of the court show- that there was a contract between the parties, which the defendant has brokeu, the answer is, that though the plaintiff might recover for such a breach *78ill assumpsit, she can only do so under a special count alleging the contract and breach. The complaint in this case contains only the common counts, for money had and received, and for goods sold. The rule that the plaintiff cannot recover by proving a cause of action different from that alleged, applies in appeal cases, as well as other suits. — Smith v. Causey, 28 Ala. 655-658. Whether the plaintiff’s right of recovery be rested on the defendant’s conversion of her property, or on the breach of a special contract, is, therefore, immaterial, for neither one of these causes of action was alleged in the complaint.

We are constrained to hold, that the court erred in the charge given.

The judgment must be reversed, and cause remanded.