113 Mich. 637 | Mich. | 1897
The single question raised upon this record is whether an action could be maintained upon a count for money had and received, when the defendant had sold and received money for timber which he cut and removed from the plaintiff’s premises under circumstances amounting to a trespass. It is not denied that a recovery may be had in such a case in assumpsit, under 2 How. Stat. § 8024, but it is insisted that the declaration must be special, alleging the trespass, and the waiver thereof. Incidentally it is said that title to land was in question, or rather the question of boundary; but this is not discussed by the defendant, and the case of Hart v. Hart, 48 Mich. 175, seems in point. If it can be said that the question of boundary amounted to a question of title, it was not pleaded, nor was the justice asked to certify the case upon the claim that the testimony showed it to be involved.
Counsel for the plaintiff rely upon a count for money had and received, and a right to recover, based on the receipt of money by the defendant upon the sale of the timber unlawfully cut. Error is alleged upon the refusal to allow a recovery of such sum, the court having refused to admit any evidence under the declaration, holding that, although a recovery might be had in assumpsit, it was necessary to allege the trespass and conversion. In Watson v. Stever, 25 Mich. 386, assumpsit was brought to recover the value of logs which Watson had taken possession of, claiming to have bought them of third persons. The circuit judge permitted a recovery, and this court said that “there are not wanting decisions which support the ruling,” and a number of cases are cited in a note t.o that case where recovery in assumpsit was permitted, although the defendant had not sold the property. But it was held in the case cited that assumpsit would not lie, as the defendant ‘ ‘ was not shoiun to have sold any of the logs.” The court said, however:
“If one has taken possession of property, and sold or disposed of it, and received money or money’s worth therefor, the owner is not compellable to treat him as a wrong-doer, but may affirm the sale as made on his behalf, and demand in this form of action the benefit of the transaction. But we cannot safely say the law will go very much further than this in implying a promise, where the circumstances repel all implication of a promise in fact. Damages for a trespass are not, in general, recoverable in assumpsit j and, in the case of the taking of personal property, it is generally held essential that a sale by the defendant should be shown. ”
The statement of the rule is supported by the citation of many authorities. The distinction which apparently is sought to be drawn is that, where there is the conversion
The judgment is reversed, and a hew trial ordered.