143 Ky. 827 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
In August, 1908, G-eorge F. Weaver was the owner of 4,700 staves at Fariston, on the Louisville & Nashville
The proof shows that the plaintiff owned the staves claimed, that they were ricked upon the yard at Fariston in two ricks, that they were there on August 24th, and before the shipment of the three car loads by defendant, and that they were missed immediately after this shipment. Two of the men who helped load them for defend-' ant say that plaintiff’s staves were put in these cars, while its head boss and his assistants and two other employes say they were not put into the cars.. On this evidence it was proper to submit the question to the jury, and the finding of the jury on the question of ownership, conversion and value will not be disturbed.
But it is insisted for appellant that, as the pleadings charge a larceny, an unlawful taking of the staves, an action in assumpsit or for their value does not lie, but that the suit should have been for damages growing out of the tort. In Bliss on Code Pleading, section 13, Cooley on Torts, 3d Ed., 160, and Pomeroy’s Code Remedies, 4th Ed., section 48, p. 74, the principle is, in varying terms, stated, that where one has been .wrongfully or unlawfully deprived of his property, he may sue for the property and damages for its taking, or he may sue for its value, at his option; and the right to treat the property as if sold to the wrongdoer is universally recognized when the property has been sold by the wrongdoer and converted into money. The right of the owner to elect as to which course he will pursue in such case was expressly recognized by this court in the case of Eversole v. Moore, 3 Bush, 49. The question arose in this way. The plaintiff, Moore, sued Mrs. Eversole as administra-trix of her deceased husband’s estate on two promissory notes. The defendant resisted the judgment by pleading a set-off equal to the amount sued for. She charged that.
“The answer, by alleging a forcible taking from the intestate’s possession, imports that the property .so taken was his, as his possession, alone prima facie implied.
“And although tort can not be •set-off against contract, yet the trespass in this case may be waived, and, instead of suing for indeterminate damages arising ex delicto, an action, ex contractu, might be maintained for the value of the property converted on an implied promise to pay the value of it; consequently, indebitatus assumpsit might' be maintained for that value. And that which the appellant might have recovered in such an action, she may plead as a set-off in this case, as the demands of both parties árise from contract, express or implied, to pay a certain sum in money (the value of the property, not damages), which might be recovered by each in the character in which they respectively stand and plead in this action. This conclusion does not conflict in principle with any former decision of this court.
“And, though the answer shows a tortious conversion, yet its election to demand only the value of the property waived the tort and relied on implied contract, which might be enforced by indebitatus assumpsit.”
This opinion is conclusive of the question under consideration. Judgment affirmed.