113 P. 749 | Mont. | 1911
delivered the opinion of the court.
After this action was begun the plaintiff, D. C. Kyle, died, and Mary A. Kyle, as administratrix, was substituted.
We think the order was properly made. This is not a case wherein the plaintiff may sue as upon an implied contract, waiving the tort, as is the familiar expression. As long ago as 1810, in the case of Whiting v. Sullivan, 7 Mass. 107, Chief Justice Parsons said: “The law will not imply a promise of any person against his own express declaration; because such declaration is repugnant to any implication of a promise.” In Webster v. Drinkwater, 5 Greenl. (Me.) 319, 17 Am. Dec. 238, the court said: “It is a principle well settled that a promise is not implied against or without the consent of the person attempted to be charged by it. * * * And where one is implied, it is because the party intended it should be, or because natural justice requires it, in consideration of some benefit received.” Chief Justice Beardsley said in Osborn v. Bell, 5 Denio, 370, 49 Am. Dec. 275: “It was not shown [ón the trial of this case], that the defendant received any benefit from the seizure and sale of the property. No express promise to pay for the goods was pretended, and every feature of the transaction repels the idea that the defendant intended to have one implied from what he did. He may have been a trespasser, but I see no ground on which he can be held liable for these goods as sold to him. If he can be, such an action is, in almost every imaginable case, a concurrent remedy with trover, replevin, and trespass for personal property. It may be a con
The case of Monroe v. Cannon, 24 Mont. 316, 81 Am. St. Rep. 439, 61 Pac. 863, is illustrative of that class of cases in which the defendant derived a benefit from his wrongful act; but we find nothing in the record of this case to indicate that defendant received any benefit from his act.
The affidavit for attachment does not set forth the same cause of action found in the complaint. This affidavit may have been sufficient on its face to warrant the clerk in issuing the writ (see Newell v. Whitwell, 16 Mont. 243, 40 Pac. 866), but the court must look to the complaint to ascertain whether it states a cause of action in contract, express or implied. The fundamental question is whether the complaint states such a cause of action. As this complaint does not, the attachment was properly discharged. (Revised Codes, sees. 6656, 6681, 6683.)
The order is affirmed.
Affirmed.