Mr. Justice Sharswood
delivered the opinion of the court, May 11th 1874.
This was an action of assumpsit. The declaration contained counts for goods sold and delivered, work and labor done, the common money counts, and on an account stated. The plaintiff’s case was, that he had sent a certain number of logs to the defendant, who owned and operated a saw-mill, to be sawed. He undertook to. show that he received only a part of the lumber from the defendant after it had been sawed, leaving some thirty thousand feet and more unaccounted for. The learned judge below, in his charge to the jury, treated the case as though it had been an action against a bailee for negligence, either ex contractu or ex delicto. He instructed the jury that such a bailee as the defendant was bound to exercise the same care over the property intrusted to him as a prudent man ordinarily takes of his own property similarly situated; that if, for want of such care, the plaintiff’s lumber,-or any portion of it, was lost, the defendant would be liable for it, and that no other proof of negligence or conversion had been given than that which grows out of the quantity of lumber sawed and the quantity delivered; this, however, made out a primd facie case, and put the defendant on proof of the care exercised. This might have been a true statement of the principles of law had the declaration warranted it. If it had been an action on the case for negligence, or had there been a count upon a contract to keep as bailee, it might have been all well. But what notice had the defendants to come prepared to meet the question of negligence, by which the *65lumber was lost ? On an amendment of the narr. below they would have been entitled to a continuance. The learned judge was evidently not very clear in his opinion, for in his charge, he said: “We are not without doubt as to whether under a count for goods sold and delivered, or money had and received, a recovery ought to be permitted on the evidence in this case, but we instruct you that the narr. is sufficient, and that the case is for you upon the evidence.” One of the objections to the practice of trying cases on the general issue is, that the plaintiff cannot discover in general before he comes to trial what defence he will have to encounter. It would be still worse if the defendant were obliged to go to trial without knowing, at least, the general character of the claim upon him. It is evidently true, that in many cases, the owner of goods wrongfully taken or detained by another, may waive the tort and recover on a count for money had and received in assumpsit. But then there must either be some evidence that goods have been actually converted into money by the wrongdoer, or the circumstances must Be such as to raise a presumption that he has done so. The leading case on this subject is Longchamp v. Kelly, Dougl. 187. That was the instance of a masquerade ticket which the defendant received to sell for the plaintiff. He neither accounted for the price nor returned the ticket. Lord Mansfield and the Court of King’s Bench held, that it was a fair presumption that he had sold it, and that the plaintiff could recover under the count for money had and received. To the same point may be cited our own cases of Willet v. Willet, 3 Watts 277" court="Pa." date_filed="1834-09-15" href="https://app.midpage.ai/document/willet-v-willet-6311350?utm_source=webapp" opinion_id="6311350">3 Watts 277; Gray v. Griffith, 10 Id. 483; McCullough v. McCullough, 2 Harris 295. The defendant in error relies upon the decision in Deysher v. Triebel, 14 P. F. Smith 383, to support the contention that a recovery might Be had upon the count for goods sold and delivered. But that opinion does not sustain him. There must be some fraud, unfair dealing, or other circumstances, from which an implication may arise under such a count, as if a coal merchant, by the mistake of his driver, empties a ton at my door, and I take it without inquiry or objection, and consume it, "knowing that it must have been sent by mistake, it may be that a recovery could Be had against me in assumpsit under a count for goods sold and delivered, upon an implied promise to pay the market price. It is evident that conversion or consumption was essential; a mere detention, or a loss even by negligence would not have been enough to charge him in this form of action. There must be something from which to presume that he assumed the ownership as vendee.
Judgment reversed, and venire facias de novo awarded.