CHAPTER II.

OF ELECTION BETWEEN ACTIONS.

Section 11. The Right of Election distinguished. 12. The Right not essentially changed.

13. The Right to waive the Tort in Conversion of personal Property.

14. Where there is both a Contract and a legal Duty.

15. Election in fraudulent Sales, and for Money obtained by Fraud.

16. Where the Wrong-doer has repudiated the Contract.

17. Instances of Election between Actions upon the same Contract. 18. Other instances of Election.

19. Considerations that should control the Election.

§ 11. The Right distinguished.

In speaking of election in this connection, reference is had to cases where the party has but one cause of action-that is, there is but one wrong, but one right infringed, and he can bring but one action. He may not be confined to one class of actions, it may be for his interest to seek relief of an equitable nature, or only a money judgment. If the latter, in cases, to be hereafter noted, he may proceed for a tort, or only for the violation of an agreement. In these and in some other cases of double relief the two remedies cannot be pursued together; they are ordinarily inconsistent-hence the plaintiff must make an election.2

1 [The distinction between an action ex contractu and ex delicto is: The former arises out of a wrong with an agreement, either express or implied; the latter out of a wrong without an agreement.]

2 [The character of the action must be determined by the complaint or petition. After the plaintiff has made allegations stating a cause of action ex delicto, it is not competent for him at the trial to convert it into one ex contractu, without amending his pleading. Neudecker v. Kohlberg, 81 N. Y. 297; Terry v. Munger, 121 N. Y. 161, 24 N. E. 272. The distinction of actions in tort and on contract is as essential under the code as under the common-law prac tice. In the one execution may go against the body, in the other against the property, only, of the defendant. It is therefore seen that the distinction is not merely technical or formal, but is a substantial one. Anderson v. Case, 28 Wis. 505; Pierce v. Cary, 37 Wis. 232; Sawyer v. Nelson, 44 Ill. App. 184; Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397; Johnson v. Morton, 94 Mich. 1, 53 N. W. 816.]

§ 12. The Right not essentially changed.

Upon principle, it would seem that, in one particular, the right of election has been modified by the Code. In some causes of action arising from torts, the injured party is authorized at common law to declare in assumpsit; to do so it is necessary to show a fictitious undertaking or promise, and hence the rule, as applied to these causes, that one may waive the tort and sue as upon contract. If, for example, a defendant has wrongfully taken personal property belonging to the plaintiff, or has wrongfully refused to return that which has been loaned him, the wrong in either case is a tort, and, at common law, the proper action in one case is trespass and in the other trover, though trover will also lie, as will the modernized action of replevin. But the plaintiff may also sue in assumpsit and charge a sale, a promise and its breach, although there has been no sale in fact, and no promise either express or, as a fact, implied. There may be there is, under some circumstances-an implied contract; the phrase does not necessarily state a fiction, for an agreement may be logically inferred from the conduct of the parties-an undertaking which is understood by them, though not expressed in words. It is consistent with the spirit of the new system to treat legal obligations arising from such an undertaking as contracts, for they are so in fact. In the case supposed, however, the implied promise is a fiction, and yet to allow it is well enough in a system abounding in fictions. It is not, however, in harmony with one from which fictitious averments are supposed to be excluded. Yet I do not find that the attention of the court, in the states that have adopted the new system, has been called to the seeming inconsistency. The common-law doctrine is still recognized; the old phraseology, in the old sense, is still used by the courts; and I shall be compelled to treat the subject, in this regard, according to the view taken under the common-law procedure.*

Ante, § 9; post, § 128.

4 Judge Swan, of Ohio, in his treatise upon Pleadings under the Ohio Code, discards the fiction of a promise in cases like the one supposed in the text, and says: "These artificial inferences of the law, which are not implied or BLISS CODE PL.-2 (17)

§ 13. The Right to waive the Tort in Conversion of personal Property.

Suitors frequently avail themselves of the right of election in cases where personal property has been unlawfully seized or converted. It is not disputed that when property has been wrong fully appropriated, and has been sold and converted into money, the owner may ratify the sale by suing the wrong-doer for money had and received for his use. This right may not. be inconsistent with the theory of truthfulness in pleading; for, if the plaintiff charges that the defendant, being in possession of his property, sold it for a certain sum, which he refuses to pay over, he makes

deduced as a truth from the facts, cannot, in code pleading, be substituted for the facts, they being, in respect of pleadings, legal fictions adopted to sustain the different forms of action at common law, and must, with the abrogation of those forms, be discarded from pleadings under the Code." Pages 48, 49. It is to be regretted that so rational a suggestion has not been followed by the courts.

5 [It is well settled in Michigan that a tenant in common may maintain assumpsit against his cotenant for his share of the crops. Such crops are divisible, and the share of each easily ascertained; and the refusal to recognize the right of the cotenant amounts to a conversion. The tort may be waived, and assumpsit brought. Loomis v. O'Neal, 73 Mich. 582, 41 N. W. 701. This is not the rule in case of tenants in common of a chattel, where one has as good a right to possession as the other.]

6 JONES v. HOAR, 5 Pick. 285, and note; GORDON v. BRUNER, 49 Mo. 570; [Terry v. Munger, 121 N. Y. 161, 24 N. E. 272; Lehmann v. Schmidt, 87 Cal. 15, 25 Pac. 161. 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 wrongdoer 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 wrongdoer, 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. Jones v. Hoar, 5 Pick. 285; Willet v. Willet, 3 Watts, 277; Morrison v. Rogers, 2 Scam. 317. See Trull v. Granger, 8 N. Y. 115; Carpenter v. Stilwell, 3 Abb. Pr. 459. The general rule is 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 defense that he obtained it wrongfully. Putnam v. Wise, 1 Hill, 240; Freer v. Denton, 61 N. Y. 492; Floyd v. Wiley, 1 Mo. 430, 643.]

a case of liability as upon contract, and states nothing that is untrue. If he sue for the wrongful taking, charging the conversion, he will recover the value of the property, without regard to the amount for which it was sold; while, if he affirms the sale, he will be entitled to the money received for the property, without regard to its value. But if the property has not been sold, but still remains in the hands of the wrong-doer, can the owner, under such circumstances, bring an action as upon contract? The right to do so is denied in Massachusetts, Vermont and Pennsylvania, and under common-law pleading, but was affirmed in New York before the adoption of the Code. In courts working under the new system, where there has been a conversion merely, and no sale, the right to sue as upon contract has been generally asserted. So where money has been stolen or embezzled the wrong-doer may be sued for money had and received.1o

§ 14. Where there is both a Contract and a legal Duty.

In certain relations which are usually entered into by contract, the law imposes a duty that arises from the relation rather than the contract, and if the duty be disregarded, the one who suffers may sue upon the agreement, or may treat the wrong as a tort, and bring an action analogous to that of trespass on the case.1

11

7 Jones v. Hoar, supra; Stearns v. Dillingham, 22 Vt. 624; Willet v. Willet, 3 Watts, 277. See, also, Morrison v. Rogers, 2 Scam. 318. 8 Putnam v. Wise, 1 Hill, 234, and note; Berly v. Taylor, 5 Hill, 577, and note; and other cases cited in note 1, § 154. See, also, Floyd v. Wiley, 1 Mo. 430; Johnson v. Strader, 3 Mo. 359; Russell v. Bell, 10 Mees. & W. 351, 352; [Huston v. Plato, 3 Colo. 402; Logan v. Wallis, 76 N. C. 416.]

• Smith v. Schulenberg, 34 Wis. 51; Roth v. Palmer, 27 Barb. 652; Hawk v. Thorn, 54 Barb. 164; Roberts v. Evans, 43 Cal. 380; McGoldrick v. Willits, 52 N. Y. 612; Gordon v. Bruner, 49 Mo. 570. And see Norden v. Jones, 33 Wis. 600, as applied to trespass upon land, where the general question is discussed, and Stearns v. Dillingham, supra. The contrary view is taken in Iowa, and the right to sue as upon contract is confined to cases where the property tortiously converted has been sold. Moses v. Arnold, 43 Iowa, 187.

10 [Richardson v. Kelly, 85 Ill. 491.]

11 2 Add. Torts, c. 22, § 1

This duty arises on the part of carriers, innkeepers, attorneys, physicians, farriers, and other skilled mechanics, etc. Thus, if a railroad conductor wrongfully ejects a passenger, an action for the tort will lie, although the person ejected is riding by virtue of a contract.12 Assumpsit, or case will lie against an attorney for a breach of his duty.13 The owners of a ship are responsible to the owners of goods shipped on board their vessel for negligence by themselves or their servants, notwithstanding a charter-party. The fact of contract does not relieve them from liability incurred for the nonperformance of duty in the course of the ship's employment." But the election to sue a carrier for negligence does not prevent him from setting up a special contract as a defense, if by its terms it will extricate him.15

If there be no legal duty except as arising from the contract, there can be no election-the party must rely upon the agreement. Thus, if one agree to take the charge and superintendence of a farm for a year, and to take charge and care of the stock, etc., there is no legal duty outside the contract; and an action, as on the case for tort, will not lie for his negligence.16 If one agrees to board a horse for another and keep him in a separate stall, and negligently put him in a stall with other horses, and he is kicked and injured in consequence, the negligence cannot be charged as a tort, for there is no duty outside the contract.17

12 Emigh v. Pittsburg, Ft. W. & C. R. Co., 4 Biss. 114 [Fed. Cas. No. 4,449]. In this case the court holds the doctrine to be that, where there is a contract from which a common-law duty arises-as, in the services of a lawyer, physician, or in case of a common carrier, agent, or wharfinger-the contract may be laid as matter of inducement, and the pleader may rely upon tort for breach of duty.

13 Church v. Mumford, 11 Johns. 479.

14 Leslie v. Wilson, 3 Brod. & B. 171.

15 Clark v. St. Louis, etc., Ry. Co., 64 Mo. 440; Oxley v. Same, 65 Mo. 629.

16 Masters v. Stratton, 7 Hill, 101.

17 Legge v. Tucker, 1 Hurl. & N. 500. the action could only be upon contract:

The opinion says, while holding that "But, in case of carriers, the custom

of the realm imposes on them a duty to carry safely, and a breach of that duty is a breach of the law, for which an action lies, founded on the common law, and which does not require a contract to support it. So in case of a farrier who shod a horse negligently; he might be sued in tort.” And another judge says: "When the foundation of the action is a contract, in what