44 Pa. Super. 381 | Pa. Super. Ct. | 1910
Opinion by
As the case was submitted to the jury their verdict establishes that there was an actual conversion by the defendant to its own use. of the property of the plaintiff. That there was sufficient evidence to warrant such submission and to sustain the verdict of the jury is clearly shown by the learned trial judge in his opinion refusing a new trial and directing judgment to be entered on the verdict. We need not here repeat his analysis of the testimony. There remains but a single question for consideration.
There can be no doubt of the existence of a general rule which in substance declares that where the personal prop- Í erty of one has been wrongfully taken by another and j remains in his possession, the owner cannot recover its 1 price or value in an action of assumpsit. The able counsel 1 for appellant has cited a long list of cases in this and other jurisdictions in which the rule has been formulated and its application discussed by eminent jurists. Deysher v. Triebel, 64 Pa. 383; Satterlee v. Melick, 76 Pa. 62; Bethlehem Borough v. Fire Co., 81 Pa. 445; Balliet v. Brown, 103 Pa. 546, are all on this subject and will sufficiently point the way to the earlier precedents which have long since placed the existence of this rule beyond question.
There are, however, and have been long a number of exceptions to the general rule as widely and as completely recognized as the rule itself. Thus where it could be shown \ that the goods wrongfully converted had been sold, it \ has been held that the owner might waive the tort and i maintain an action of assumpsit for their price. The_,'principle on which the exception appears to rest is that the wrongdoer has by selling the goods asserted in the strongest manner his title to and right of dominion over
In Deysher v. Triebel, 64 Pa. 383, Mr. Justice Sharswood uses the following language: “Tn many cases,’ says Mr. Leigh, 'where the defendant has received goods wrongfully, a contract for the purchase will be inferred, and the plaintiff may waive the tort and recover the amount in an action for goods sold and delivered.’ . . . And in Studdy v. Sanders, 5 B. & C. 628, where the vendor of cider-juice to be made on his premises, lent casks to the vendee for the purpose, which were seized through the vendee’s fault for a breach of the excise laws, it was held that the vendor might recover the price of the casks as for goods sold.” Still further, it has been said that if the goods were of such character that the defendant, after converting them to his own use, had consumed them, a plaintiff might maintain an action of assumpsit for the price.
In the present case it is true it was not shown that the defendant had made an absolute and entire sale of the corpus of the property which was the subject of the litigation, but it had asserted its right to sell it and it had actually sold, for a considerable sum of money, the use of the property for a period of time. In form this was a lease of the property, but the execution of this lease was in substance an exercise of the same power and dominion over the property as if the sale had been complete. The defendant had thus voluntarily put itself in the attitude of one who had acquired the lawful title to the property by purchase, and we can see no reason why the law would not thereupon raise a promise on its part to pay for it. It is also true that the corpus of the property, while the defendant thus held possession of and exercised control over it, was destroyed by fire. But this fact ought not to relieve it from liability on its implied promise any more than did the seizure of the cider casks by the revenue officers in the case already cited. We are of opinion therefore that the facts of this case fairly bring it within the recognized exceptions to the general rule upon which the appellant relies.
We note the statement in the appellee’s printed brief that this case has been tried twice in the court below; that the technical defense now relied on was not made at all during the first trial, and that any new action which the plaintiff could now bring would be barred by the
Judgment affirmed.