The general doctrine is thus stated in substance, in Saunders:18 "When the action is maintainable for the tort simply, without reference to any contract made between the parties, no objection can be raised on the ground that the plaintiff should have declared upon the contract; as for instance, in actions against common carriers, founded on the custom of the realm, and the like. But where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, then the plaintiff must proceed upon the contract, and a special action upon the case will not lie." "

"19

§ 15. Election in fraudulent Sales, and for Money obtained by Fraud.20

Where property is sold and no credit has been stipulated, none is to be presumed; unless payment is made on demand the title. to the property remains in the vendor; if the property has been delivered, he may recover possession, for the sale was incomplete without payment."1 So if credit was to be given upon approved security and the security is not furnished;22 or, if one sells goods for the purchaser's note, or for the note of a third person, which he is fraudulently induced to take, the property is still in the vendor. In these cases the vendor may, at his election, treat the transaction as a sale, and, instead of seeking to recover the goods, may sue for the consideration; but he cannot do both, for

ever way the declaration is framed, it is an action of assumpsit; but when there is a duty ultra the contract, the plaintiff may declare in case." 18 Cabell v. Vaughn, 1 Saund. (5th Ed.) 291, note, as given in Masters v. Stratton, supra.

19 In Kentucky this right of election is recognized under the Code, and, as indicating such election, Crenshaw, J., in Konantz v. Brown, 16 B. Mon. 577, says: "In a petition which goes for a forcible injury, it should state such facts as would be equivalent to an action of trespass at common law. If the trespass be waived, and the petition go for negligence or want of skill, it should state facts which are equivalent to an action in case according to common-law principles."

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

21 Palmer v. Hand, 13 Johns. 434; Morris v. Rexford, 18 N. Y. 552.

22 Haggerty v. Palmer, 6 Johns. Ch. 437.

the claims are inconsistent, if he brings an action for the price, he affirms the sale, and vice versa.23

So where one has obtained money by deceit or fraudulent practices, the loser may bring his action for the tort, analogous to the action on the case, or may sue upon an implied contract for money had and received;24 or where, upon a false representation as to the purchaser's solvency, a vendor has been fraudulently induced to give him a credit, the latter, on discovery of the fraud,

23 Morris v. Rexford, supra; Benedict v. Bank of the Commonwealth, 4 Daly, 171; Bowen v. Mandeville, 95 N. Y. 237. If he compromises the fraud, or seeks to enforce the contract, though unsuccessfully, he has waived the tort. Adams v. Sage, 28 N. Y. 103; Wilmot v. Richardson, *41 N. Y. 519; Powers v. Benedict, 88 N. Y. 605. He must act, however, with reasonable promptness and do nothing to affirm the sale. Joslin v. Cowee, 52 N. Y. 90; Bulkley v. Morgan, 46 Conn. 393; Dibblee v. Sheldon, 10 Blatchf. 178 [Fed. Cas. No. 3,889.]

24 BYXBIE v. WOOD, 24 N Y. 607. [This was an action to recover certain sums of money which it was claimed had been obtained from the plaintiff's assignor by means of various false statements and representations. "This state of facts," says Gould, J., "does not necessarily require an action to be brought for the tort, even if it allows one to be so brought. Such facts always raised in law the implied promise which was the contract cause of action in indebitatus assumpsit for money had and received. Having money that rightfully belongs to another creates a debt; and, wherever a debt exists without an express promise to pay, the law implies a promise and the action always sounds in contract." Hart v. Barnes, 24 Neb. 782, 40 N. W. 322; Farmers' Nat. Bank v. Fonda, 65 Mich. 533, 32 N. W. 665.]

See, also, UNION BANK v. MOTT, 27 N. Y. 633; BYARD v. HOLMES, 33 N. J. Law, 119.

[Form of Petition or Complaint for Money Had and Received.

[Title of Case. See post, § 144.

[The plaintiff complains of the defendant, and alleges:

day of

[1st. That the defendant, on the was indebted to the plaintiff in the sum of dollars for so much money had and received by the defendant for the use of the plaintiff, which sum the defendant agreed to pay to plaintiff.

[2d. The said defendant, though requested, has not paid the same, nor any part thereof, and there is now due from the defendant to the plaintiff thereon the sum of dollars, with interest from the

day of

[3d. Wherefore the plaintiff prays judgment against the defendant for the sum of dollars, with interest from the

[Note: Add verification when necessary.

day of

[A. B., Attorney for Plaintiff. See sections 172, 173, and notes.]

may repudiate the agreement as to the credit, and at once sue for the value of the goods as upon contract, or may sue in tort for the fraud.25

16.

Where the Wrong-doer has repudiated the Contract. It sometimes happens that one who has rightfully obtained possession of the property by contract so conducts himself with regard to it that he can be held, at the option of the owner, to have repudiated the contract, and can be treated as a trespasser from the beginning. Thus where there has been an intentional destruction of or injury to, a horse by the hirer, the owner is at liberty to treat him as a trespasser;26 in such case an infant may be made to respond to the injury.27 So if a horse be driven to a place different from the one to which the hirer had agreed to drive him, it is a conversion; and even if the hirer cannot be compelled to respond to the contract, if made on Sunday where such transactions are forbidden by law, he may be held for the conversion28 [and recover in an action for goods and chattels sold and delivered].29

25 Wigand v. Sichel, 33 How. Pr. 174; Roth v. Palmer, 27 Barb. 652, the court, per Hogeboom, J., citing upon the general right of election between contract and tort, Putnam v. Wise, 1 Hill, 234, and note; Cummings v. Vorce, 3 Hill, 283, and note; Berly v. Taylor, 5 Hill, 577; Brownell v. Flagler, Id. 282; Baker v. Robbins, 2 Denio, 136; Osborn v. Bell, 5 Denio, 370; Camp v. Pulver, 5 Barb. 91; Hinds v. Tweddle, 7 How. Pr. 278; Butts v. Collins, 13 Wend. 154. Also, Lightly v. Clouston, 1 Taunt. 113; Hill v. Perrott, 3 Taunt. 274; Young v. Marshall, 8 Bing. 43.

26 Campbell v. Stakes, 2 Wend. 137; Co. Litt. 57a; [Crocker v. Gulliver, 44 Me. 491; Gilman v. Hill, 36 N. H. 311.]

27 Campbell v. Stakes, supra; Homer v. Thwing, 3 Pick. 492; otherwise if the wrong consist only in immoderately driving the animal. Jennings v. Rundall, 8 Term R. 335; [Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438; Cooley, Torts, 112. Infancy is no defense to an action ex delicto. Bullock v. Babcock, 3 Wend. 391. They are liable in the same manner as adults for torts. Chapman v. Hughes, 61 Miss. 339.]

28 Hall v. Corcoran, 107 Mass. 251; Frost v. Plumb, 40 Conn. 111.

[Title of Case.

29

[Form of Petition for Goods Sold and Delivered.

[The plaintiff complains of the defendant, and alleges:

[1st. That the defendant, on the plaintiff in the sum of

day of

was indebted to the dollars for goods, wares, and merchandise (or

§ 17. Instances of Election between Actions upon the same Contract.

The suitor may have more than one remedy when the wrong is simply a breach of contract. Thus, if a servant be wrongfully discharged before the expiration of his term of service, he may at once sue for a breach of the agreement, or may wait until the term has expired and sue for his wages at the stipulated rate.3° But he cannot do both; if he sue for damages, it is a bar to a subsequent action for wages.31 If a contractor be prevented from completing his job by the unwarranted acts of the other party, he may elect to sue for damages for a breach of the contract,32 or he may sue for the value of the work already done." At common

goods, chattels, etc., with more specific words if desired) sold and delivered by the plaintiff to the defendant at his request, which sum the defendant then and there agreed to pay when requested.

[2d. The defendant, though requested, has paid no part thereof, and there is now due from the defendant to the plaintiff the sum of dollars.

[3d. Add prayer.]

30 2 Pars. Cont. 34; Rogers v. Parham, 8 Ga. 190; Booge v. Pacific R. Co., 33 Mo. 212. In a suit for wages under such circumstances, the defendant may reduce the amount to be recovered by showing that the person discharged had. during the period covered by the contract, been engaged in other lucrative business. Costigan v. Mohawk & H. R. Co., 2 Denio, 609; Hendrickson v. Anderson, 5 Jones (N. C.) 246; Pars. Cont. 34, note d; [Howard v. Daly, 61 N. Y. 362, at page 371; Mechem, Ag. § 622, at page 451; ALLEN v. WHITLARK (Mich.) 58 N. W. 470; Hinchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271; Brown v. Board of Ed., 29 Ill. App., at page 572. Also, City of Jacksonville v. Allen, 25 Ill. App., at page 54; School Dist. No. 4 v. Stilley, 36 Ill. App. 133; EMERY v. STECKEL, 126 Pa. St. 175, 17 Atl. 601.]

31 Booge v. Pacific R. Co., supra.

32 [See, as to the form of this action, James v. Allen Co., 44 Ohio St. 226. See, as to the rule in this class of cases, Howard v. Daly, 61 N. Y. 362; Allen v. Whitlark (Mich.) 58 N. W. 470; Emery v. Steckel, 126 Pa. St. 171, 17 Atl. 601; Cox v. Bearden, 84 Ga. 304, 10 S. E. 627; Hinchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271; Brown v. Board of Ed., 29 Ill. App. 572; Bennett v. Morton, (Minn.) 48 N. W. 678. Contra, School Dist. of Chadron v. Foster (Neb.) 48 N. W. 267.]

33 McCullough v. Baker, 47 Mo. 401; Fitzgerald v. Hayward, 50 Mo. 516; Merrill v. Ithaca & O. R. Co., 16 Wend. 586; Clark v. Mayor of New York, 4 N. Y. 338; Chamberlin v. Scott, 33 Vt. 80.

84

law, where lands had been demised by covenant and the lessee had actually occupied the premises under the lease, the lessor was not compelled to base his action upon the covenants in the instrument, but might sue in debt for the sum due, and offer the deed in evidence to show the relation of landlord and tenant, and fix the amount of the rent. Afterwards the action of assumpsit for use and occupation was allowed by statutes when the agree ment was not made by deed, which statute was incorporated in the New York Revised Statutes, and, by amendment to conform to the new system, now reads as follows: "A landlord may recover a reasonable satisfaction for use and occupation, by any person, under any agreement not made by deed; or, if an agreement not by deed, by which a certain rent is reserved, appears in evidence, plaintiff may use it as evidence of the amount of damages." This is adopted substantially in Missouri. Actual occupation during the term is not necessary if the tenant took possession and occupied for a part of the term, and might have done so for the whole.38

§ 18. Other Instances of Election.

One who suffers a wrong arising from breach of contract may have a choice between remedies of a legal and of an equitable nature. Thus, if he would affirm the agreement, he may, in a proper case, have an action for damages for its breach, or to recover a specific sum due upon it, or he may sue for its specific performance. Under peculiar circumstances, only one of these actions

34 2 Chit. Pl. 430,' note u.

35 11 Geo. II. c. 19; Tayl. Landl. & Ten. § C35, etc.; Garvey v. Dobyns, 8 Mo. 213.

26 1 Rev. St. 748, § 26.

37 Rev. St. 1879, §§ 3081, 3082.

38 Hall v. Western Transp. Co., 34 N. Y. 284.

89 [ When will the Courts Grant Specific Performance of a Contract? [The courts will grant specific performance of a contract only when an action for damages would prove inadequate, and then only when the court can supervise its execution. But it has been held on contracts for the sale of land that specific performance may be obtained although there is an ade