expressly extended to those amendments which require the consent of the court granted upon a motion, and the rule is settled that even in that class the cause of action or defence may be entirely changed. In respect to the amendments made at the trial, or on appeal, or by the court upon its own motion, great freedom is used, provided the parties are not misled and surprised, and the issues to be decided are not wholly changed. When evidence has been received without objection making out a cause of action, and especially after a favorable verdict upon such evidence, the utmost liberality is shown by the courts in conforming the averments of the pleading to the case as proved, if the ends of justice will be subserved thereby.2 The plaintiff cannot, however, have his summons and complaint amended during the trial by substituting a different defendant for the single one who was sued, and who had appeared and defended.3

§ 567. Election between actions ex delicto and those ex contractu. Intimately connected with the questions last discussed, as to the proper forms of actions and the correspondence between the allegations and the proofs, is the subject indicated by this heading; that is, the power held by the plaintiff, under certain circumstances, of choosing whether he will treat his cause of action as arising from tort or from contract. This right of election sometimes occurs when the contract is express, but, on account of the tortious acts of the defendant, the plaintiff may disregard it, and sue directly for the wrong. In the great majority of instances, however, the contract invoked, and made the basis of the suit, is implied. The theory of the implied promise, and its invention in order that certain classes of liabilities might be enforced by means of the action of assumpsit, have been already explained. As the fictitious promise was implied or inferred by the law from

This is particularly the case in North Carolina, where the greatest liberality of amendment prevails. Robinson v. Willoughby, 67 N. C. 84; Bullard v. Johnson, 65 N. C. 436. In the first case the action was brought to recover possession of land under a deed absolute on its face (ejectment). The court, on appeal, held that this deed was in fact a mortgage, and reversed a judgment obtained by the plaintiff, ordering a new trial. Before the second trial, an amendment was permitted changing the cause of action from

its original form to one for the foreclosure of this mortgage.

2 Supervisors v. Decker, 34 Wisc. 378; Hodge v. Sawyer, 34 Wisc. 397; Bowman v. Van Kuren, 29 Wisc. 209, 215; Smith v. Whitney, 22 Wisc. 438; Robinson v. Willoughby, 67 N. C. 84; Bullard v. Johnson, 65 N. C. 436; Oates v. Kendall, 67 N. C. 241.

3 Little v. Virginia, &c. Water Co., 9 Nev. 317. The reporter's headnote is much broader than the decision actually made, and is manifestly erroneous.

acts or omissions of the defendant which created a liability ex aquo 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.

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

§ 569. 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 lands, 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. 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. 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. If money has been converted, the

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, 234, 240, and the reporter's note; Berly v. Taylor, 5 Hill, 577, 584, and the reporter's note.

2 McKnight v. Dunlop, 4 Barb. 36, 42; Henry v. Marvin, 3 E. D. Smith, 71; Tryon v. Baker, 7 Lans. 511, 514.

3 Hinds v. Tweddle, 7 How. Pr. 278, 281; Chambers v. Lewis, 2 Hilt. 591; Putnam v. Wise, 1 Hill, 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 the last case, goods had been carried away and converted by the defendant. The court, by Bliss J., said: "It is not disputed, that when there is a conversion of personal property, and that property has been sold and converted into money, the owner may ratify the sale by suing the wrong-doer

as for money had and received to his use but when the property has not been sold, but still remains in the hands of the wrong-doer, there is a difference of opinion; and there have been conflicting decisions whether the owner may waive the tort, and sue for goods sold and delivered. 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 Administrator, 2

right of election exists 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. 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.2 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

Gill & J. 326, and cases cited.) Quoting 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."

1 Tryon v. Baker, 7 Lans. 511, 514. 2 Trull v. Granger, 8 N. Y. 115. On the other hand, when a complaint alleged that the plaintiff was the owner and entitled to the possession of certain premises, that the defendant took possession thereof under a void deed, and leased them, and has received the rent arising from

such letting, and demanded judgment for the amount so received, the court held that there was no power to waive the tort, and sue on contract for money had and received; that the doctrine of election did not extend so far as to allow the plaintiff to try, under the form of an action for money had and received, a right or claim to real estate, or to its possession, or to its rents and profits. Carpenter v. Stilwell, 3 Abb. Pr. 459. This was a Special Term decision, and does not, therefore, have much authority as a precedent.

3 Norden v. Jones, 33 Wisc. 600, 604, 605. The opinion of Dixon C. J. is a full and most instructive examination of the doctrine. It rejects the narrow rule which confines an election to the single case