20 Kan. 90 | Kan. | 1878
The opinion of the court was delivered by
This was an action on account, tried before a justice of the peace, and brought to the district court by Mongold on appeal. In plaintiff’s bill of particulars were the following items, among others: “October 1873, to cash, $19.00; July 1874, cutting 32 acres grass, $24.00; May 1874, 64 feet lumber, (wagon bed,) $1.60; June 1874, 65 feet lumber, pine, (wagon bed,) $3.25; October 1874,
At the trial in the district court, when the plaintiff introduced his testimony as to the two items above named as for “potato crop” and “shocks of corn-fodder,” it appeared that they were for damages done to his property by defendant’s stock. There was no testimony tending to show that the defendant had promised to pay for the same, or had realized money, or money’s worth, therefrom. The defendant objected that the testimony was irrelevant, and showed a misjoinder of causes of actions, some on contract, others in tort. The court overruled the defendant’s objection, to which ruling the defendant duly excepted, and now brings the case here for review.
The question is presented, whether Mongold could waive the tort or trespass committed by the cattle of Tightmeyer to his personal property, and sue on contract? Could he elect between an action ex delicto, and one ex contractu, for the damages to his crops? It is a familiar rule of law, that a promise may be express, or implied. Whenever a promise is implied, and the consideration is sufficient, an action on contract may be maintained. The whole discussion of waiving the tort and suing on the contract is reduced to the single question, When is a promise implied by the law? “It is a principle well settled,” says the court in Webster v. Drinkwater, 5 Greenl. 322, “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 plainly requires it, in consideration of some benefit received.” Within this rule, the weight of authority seems to be, that when goods or things have been wrongfully taken or converted, whether sold or disposed of, or not, by the wrongdoer, the tort may be waived, the transaction treated as a sale, and an action maintained upon the implied promise to pay the price or value of the goods. Pomeroy on Civil Remedies, §§ 567, 574;
The judgment must be reversed for the error committed in admitting incompetent testimony, prejudicial to the plaintiff in error, and the case will be remanded for a new trial.