which created a liability ex æquo et bono, it sometimes happened that these acts or omissions were tortious in their nature. In such a case, therefore, the liability could be regarded in a double aspect; namely, as directly springing from the tort committed by the wrong-doer, or as arising from the promise to make compensation which the law implied and imputed to him. As the single liability thus resulting from the given acts or omissions. was considered under these two different aspects, the common law provided two distinct means or instruments for enforcing it, one by the form of action appropriate for the recovery of damages from the tort, the other by the form of action appropriate for the recovery of damages from the breach of an implied promise. In what instances — that is, in what classes of tortious acts or omissions - the right of action existed had been determined by the courts, although there was not a complete uniformity of decision among the tribunals of the several States.

§ 459. *568. New Procedure makes no Change in Doctrine of Election. The doctrine of electing between an action ex delicto and one ex contractu, or, to speak more accurately, between treating the cause of action as arising from tort or from contract, has been retained under the new procedure; and it is applied in the same classes of cases, and is governed by the same general rules, as in the former system. The courts, without

Brown (1902), 115 Ga. 23, 41 S. E. 385.

Where evidence is admitted which is not in conformity to the pleadings, the latter will be treated as amended to agree with the proof: Nicklace v. Dickerson (1898), 65 Ark. 422, 46 S. W. 945; Davis v. Goodman (1896), 62 Ark. 262, 35 S. W.

231.

The prayer for relief may be amended: Hogueland v. Arts (1901), 113 Ia. 634, 85 N. W. 818; Slater . Estate of Cook (1893), 93 Wis. 104, 67 N. W. 15; Liese v. Meyer (1898), 143 Mo. 547, 45 S. W. 282. In the last case it was held that such an amendment did not change the cause of action.

An amendment substituting the real party in interest is not allowable: Wilson v. Kiesel (1894), 9 Utah, 397, 35 Pac. 488. Contra, Service v. Bank (1900), 62 Kan. 857, 62 Pac. 670; Hudson v. Baratt (1901), 62 Kan. 137, 61 Pac. 737.

Where a new defence is introduced on the trial by amendment, the plaintiff is entitled to a continuance: Dunn v. Bozarth (1899), 59 Neb. 244, 80 N. W. 811.

"The mode of amending pleadings in this State is by rewriting the pleading, leaving out such allegations and inserting such other allegations, as may be desired, so that all parts of the pleading shall be in one instrument complete in itself:" Satterlund v. Beal (1903), — N. D. —, 95 N. W. 518.]

1 [In Downs v. Finnegan (1894), 58 Minn. 112, 59 N. W. 981, the court said: "It being established that an injured party may elect between the two forms of remedial proceedings, may sue in tort for the wrong done him, or in assumpsit as upon an implied contract, it follows that by waiving the tort the demand may be counterclaimed against a plaintiff's cause of action arising on another contract, or, where itself set up by a plaintiff as arising

perhaps appreciating the full extent of the changes, and the effect of abolishing all distinctions between forms of actions, decided that the power of choice between the two modes of enforcing demands, of waiving the tort and suing upon an implied promise, still exists; and these early decisions have been followed by so many others without an expression of dissent, that the rule is as firmly established in the reformed as it was in the common-law pleading. The single principle upon which the entire doctrine rests is very simple, and should — and would, if the courts were always consistent in acting upon it-afford a ready and plain solution of every question, new or old, which can be suggested. This single principle may be thus formulated: From certain acts or omissions of a party creating a liability to make compensation in damages, the law implies a promise to pay such compensation. Whenever this is so, and the acts or omissions are at the same time tortious, the twofold aspect of the single liability at once follows, and the injured party may treat it as arising from the tort, and enforce it by an action setting forth the tortious acts or defaults; or may treat it as arising from an implied contract, and enforce it by an action setting forth the facts from which the promise is inferred by the law. It should be remembered that different promises may be inferred from different acts or omissions: thus, in one case, the promise might be to pay over money had and received to the use of the injured party; and in another, where no money had been actually received, the implied undertaking might be that the wrong-doer would pay the value or price of goods taken by him. This dis

on contract, it may be opposed by a counterclaim arising out of another contract. . . . The right to waive the tort and to recover on an implied assumpsit is an exception to the principles of code pleading, and there must be no extension beyond what is allowed at common law. . . . Certain it is that the rule has been extended to cases where there has been a wrongful conversion of property of one person to the use of another, whether sold or not by the latter, and also to cases where a trespasser has severed trees from land in possession of the owner, or has quarried stone thereon, and has afterwards taken the trees or stone away, converting the same to his own use, so that trover or replevin

might be maintained. That the doctrine has been greatly developed and extended in application is apparent, and that in cases where property has been severed from real estate by a wrongdoer, carried from the freehold, and converted to his own use, the rightful owner may sue and recover its value as on implied contract, is thoroughly established, although it may not be in harmony with the reformed system of pleading. No reason exists why, if permissible at all, it should not include cases arising out of trespass, to the extent that the property carried away is beneficial to the trespasser, except where it would involve a trial of title to real estate."]

tinction, so palpable and commonplace, seems to have been overlooked in some classes of decisions.

Conversion.

§ 460. * 569. Classes of Cases where Election is allowed. Conflict of Authority. Having thus formulated the general principle which prevailed in the former procedure, and which has been adopted to its full extent in the present, I shall, in its further illustration, state the various classes of cases to which it has been applied by the courts, and shall thus ascertain the particular instances the kinds of wrongful acts and omissions in which the right of election exists. To this will be added a few observations upon the mode of indicating the fact that an election has been made by the pleader, that a tort has been waived, and a cause of action upon contract has been chosen. The most common classes of tortious acts, in respect of which the right of election has been invoked, are the wrongful taking or conversion of chattels, or things in action, or money; the wrongful use of land, and appropriation of its rents and profits; sales of goods on a credit procured by the fraud of the purchaser; frauds and deceits generally by which money or things in action, or chattels, are obtained; and certain cases of express contract, in which, from the policy of the law, the liability is regarded as resulting from a violation of general duty as well as from a breach of the stipulations of the agreement. These classes will be considered separately. It is a firmly established rule, from which no dissent has been suggested, that when goods or things in action have under any circumstances been wrongfully taken or detained or converted, and have been sold or disposed of by the wrong-doer, the owner may sue in tort to recover damages for the taking and carrying away or the conversion, or he may waive the tort and sue on the implied promise to refund the price or value as money had and received to the plaintiff's use.1 When, however, the chattels or things in action have been simply taken or converted, but not sold or disposed of by the wrong-doer, a conflict of opinion exists in respect to the power of the plaintiff to elect between the two forms of action.

1 McKnight v. Dunlop, 4 Barb. 36, 42; Hinds v. Tweddle, 7 How. Pr. 278, 281; Harpending v. Shoemaker, 37 Barb. 270, 291; Chambers v. Lewis, 2 Hilt. 591; Leach v. Leach, 2 N. Y. S. C. 657; Tryon v. Baker, 7 Lans. 511, 514; Roberts v.

Evans, 43 Cal. 380; Gordon v. Bruner, 49 Mo. 570, 571; Putnam v. Wise, 1 Hill (N. Y.), 234, 240, and the reporter's note; Berly v. Taylor, 5 Hill, 577, 584, and the reporter's note.

Certain cases deny this power. This ruling is rested upon the ground that the goods remaining in the hands of the wrong-doer, and no money having in fact been received by him, an implied promise to pay over money had and received by the defendant to the plaintiff's use does not and cannot arise. In this country, however, the weight of authority is strongly the other way. The cases generally admit an election, under the circumstances described, between an action based upon the tort, and an action based upon the implied promise to pay the price or value of the goods. The tort is waived, and the transaction is treated as a sale, and not as an instance of money had and received. This distinction is certainly supported by the plainest principles, if the doctrine of implied promises and election is to be admitted at all.2 If money has been converted, the right of election exists

1 McKnight v. Dunlop, 4 Barb. 36, 42; Henry v. Marvin, 3 E. D. Smith, 71; Tryon v. Baker, 7 Lans. 511, 514. [Held, in Brittain v. Payne (1896), 118 N. C. 989, 24 S. E. 711, that when property is tortiously taken and sold, the owner may waive the tort and sue in assumpsit.]

2 Hinds v. Tweddle, 7 How. Pr. 278, 281; Chambers v. Lewis, 2 Hilt. 591;. Putnam v. Wise, 1 Hill (N. Y.), 234, 240 (and see note of the reporter); Berly v. Taylor, 5 Hill, 577, 584 (and note of the reporter); Roberts v. Evans, 43 Cal. 380. Gordon v. Bruner, 49 Mo. 570, 571: "In Massachusetts, in Jones v. Hoar, 5 Pick. 285, to which there is a note to a former opinion reviewing the English cases, it was held that no contract could be implied unless the goods were sold and converted into money, and the same doctrine was held in Pennsylvania, in Willett v. Willett, 3 Watts, 277, and in Morrison v. Rogers, 2 Ill. 317. But such has not been the uniform ruling. In Putnam v. Wise, 1 Hill, 240, the court holds that, according to the well-known right of election in such cases, the plaintiff might have brought "assumpsit" as for goods sold and delivered against those who had tortiously taken their property.' To this the reporter, Mr. Hill, adds a note, reviewing the cases, and disapproving the doctrine of Jones v. Hoar. (See Hill v. Davis, 3 N. H. 384; Stockett v. Watkins's Adm., 2 Gill & J. 326, and cases cited.)" Quot

ing early Missouri decisions to the same effect, — Floyd v. Wiley, 1 Mo. 430, 643; Johnson v. Strader, 3 Mo. 359,- the learned judge adds: "It may be treated, then, as the doctrine in this State, that one who has converted to his own use the personal property of another, when sued for the value of that property as sold to him, will not be permitted to say in defence that he obtained it wrongfully." See also Small v. Robinson, 9 Hun, 418; Cushman v. Jewell, 7 id. 525, 530 (an unsupported dictum); Loomis v. Mowry, 8 id. 311; Freer v. Denton, 61 N. Y. 492; Fields v. Bland, 81 id. 239; Comstock v. Hier, 73 id. 269; Kalckhoff v. Zoehrlaut, 40 Wis. 427; Chamballe v. McKenzie, 31 Ark. 155; Huston v. Plato, 3 Colo. 402; Brady v. Brennan, 25 Minn. 210; Logan v. Wallis, 76 N. C. 416; Loomis v. O'Neal, 73 Mich. 582; Lehmann v. Schmidt, 87 Cal. 15; Terry v. Munger, 121 N. Y. 161; Abbott v. Blossom, 66 Barb. 353, 356; Starr Cash Car Co. v. Reinhardt (Com. Pl. 1892), 20 N. Y. Suppl. 872.

[To the same effect are Galvin v. Mac Mining Co. (1894), 14 Mont. 508, 37 Pac. 366; Cragg v. Arendale (1901), 113 Ga. 181, 38 S. E. 399; Crown Cycle Co. v. Brown (1901), 39 Ore. 285, 46 Pac. 451; Braithwaite v. Akin (1893), 3 N. D. 365, 56 N. W. 133; Anderson v. Bank (1896), 5 N. D. 451, 67 N. W. 821.

In Anderson v. Bank (supra), it was held that where an agent, authorized to

under the operation of either rule, since the actual receipt of money by the defendant brings the case exactly within the reason and operation of the doctrine as first stated.1 The same choice between the actions may sometimes be possible when the liability is connected with a claim to land, or grows out of its use, although the instances are much fewer than those of the preceding class. Thus, when the owner agreed to lease certain premises to the plaintiff for a term of years commencing at a future day named, but before that day actually leased them to another person who took possession, and when the time arrived the plaintiff demanded possession, tendered the rent, and on refusal brought an action for damages, it was objected on the trial that his only remedy was ejectment against the tenant in possession. The court held, that, while the plaintiff might have maintained ejectment, he could also bring an action against the lessor, which could be either upon the agreement express or implied, or in tort for the violation of the duty arising from the relation of lessor and lessee between the parties. It is settled in Wisconsin, after a careful consideration and an exhaustive analysis and comparison of the conflicting decisions, that when the defendant had committed a wilful trespass upon the plaintiff's land by deliberately turning his cattle thereon, in order that they might feed upon the grass, the plaintiff might waive the tort, and sue upon an implied contract for the price and value of the pasturage.3 § 461. 570. Actions against Common Carriers for Loss or Injury to Goods. Other Cases. It is a familiar rule, that the action against a common carrier for a loss or injury of goods may either be in tort for the violation of his general duty, or on the contract which he expressly or impliedly enters into. The owner has his election which of these remedies he will pursue; but his choice cannot alter the extent of the carrier's liability.

sell at a given price, sells to himself, and the principal waives the tort and sues in assumpsit, this does not constitute a ratification of the agent's act so as to limit the recovery to the price at which the agent had been authorized to sell. The suit is purely one in general assumpsit.]

1 Tryon v. Baker, 7 Lans. 511, 514. 2 Trull v. Granger, 8 N. Y. 115. See, however, Carpenter v. Stilwell, 3 Abb. Pr. 459.

Fraud in its

3 Norden v. Jones, 33 Wis. 600, 604, 605. The opinion of Dixon C. J. is a full and most instructive examination of the doctrine.

Campbell v. Perkins, 8 N. Y. 430, 438; Brown v. Treat, 1 Hill (N. Y.), 225; People v. Kendall, 25 Wend. 399; Wallace v. Morss, 5 Hill, 391; Campbell v. Stakes, 2 Wend. 137.

[See Poly v. Williams (1894), 101 Cal. 648, 36 Pac. 102, where a counterclaim