Same - Debts Arising From Tort - Waiver Of Tort

A frequent illustration of a quasi contractual obligation of this kind arises where a person obtains another's money by wrongful or fraudulent means. Where one person has wrongfully taken another's money, or has taken his property and converted it into money, the latter has a right of action ex delicto for the wrong done to him, as by an action of trespass or trover, or by an action on the case for the fraud. He is not always restricted, however, to an action ex delicto for the specific wrong, but may in general waive the tort,44 and sue in assumpsit for the money as for money received for his use.45

Vt. 624, 54 Am. Dec. 88; Smith v. Jernigan, 83 Ala. 256, 3 South. 515; Tuttle v. Campbell, 74 Mich. 652, 42 N. W. 384, 16 Am. St. Rep. 652; Moody v. Walker, 89 Ala. 819. 7 South. 246. See "Money Received," Dec. Dig. [Key-No.) § 3; Cent. Dig. § 6.

38 Leake, Cont. 50; Keener, Quasi Cont. 170; Lamine v. Dorrell, 2 Ld. Raym. 1216; Gilmore v. Wilbur, 12 Pick. (Mass.) 120. 22 Am. Dec. 410; Parker v. Crole, 5 Bing. 63; Oughton v. Seppings, 1 Barn. & Adol. 241; Staat v. Evans, 35 I11. 455; Notley v. Buck, 8 Barn. & C. 160; Olive v. Olive. 95 N. C. 485; Powell v. Pees, 7 Adol. & E. 426; Comstock v. Hier, 73 N. Y. 269, 29 Am. Pep. 142; Barnett v. Warren. 82 Ala. 557, 2 South. 457; Thornton v. Strauss, 79 Ala. 164. See "Money Received," Dec. Dig. (Key-No.) § 3; Cent. Dig. § 6.

39 Budd v. Hiler, 27 N. J. Law, 43; Rosenberg v. Block, 54 N. Y. Super. Ct. 537. Receipt of equivalent. Miller v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 264; Ainslie v. Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; Doon v. Ravey, 49 Vt. 293. See "Money Received," Dec. Dig. [Key-No.) § 3; Cent. Dig. § 6.

40 Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Kidney v. Persons, 41 Vt 386, 98 Am. Dec. 595. See "Money Received," Dec. Dig. (Key-No.) § 3; Cent. Dig. § 6.

41 Saville, Somes & Co. v. Welch, 58 Vt. 6S3, 5 Atl. 491; Glasscock v. Hazell, 109 N. C. 145, 13 S. E. 789. See "Money Received," Dec. Dig. (Key-No.) § 3; Cent. Dig. § 6.

42 Sergeant v. Stryker, 16 N. J. Law, 464, 32 Am. Dec. 404. See "Money Received," Dec. Dig. (Key-No.) § 5; Cent. Dig. §§ 14-20.

43 Walker v. Conant, 65 Mich. 194, 31 N. W. 786; Pugh v. Powell (Pa.) 11 Atl. 570; Drake v. Whaley, 35 S. C. 187, 14 S. E. 397. See "Money Received," Dec. Dig. (Key-No.) § 5; Cent. Dig. §§ 14-20.

The fundamental fact upon which this right of action depends is that the defendant has received money belonging to the plaintiff, or to which the plaintiff is entitled. It is not sufficient to show that the defendant has by fraud or wrong caused the plaintiff to pay money to others than the defendant, or to otherwise sustain loss or damage.46 "Assuming a defendant to be a tort feasor, in order that the doctrine of waiver of tort may apply, the defendant must have unjustly enriched himself thereby. That the plaintiff has been impoverished by the tort is not sufficient. If the plaintiff's claim, then, is in reality to recover damages for an injury done, his sole remedy is to sue in tort." 47

44This expression is generally used. As pointed out by Prof. Keener, the doctrine of waiver of tort and suit in assumpsit is simply a question of the election of remedies. "The remedies in tort and assumpsit not being concurrent, a plaintiff is compelled to elect which remedy he will pursue; and. if he elect to sue in assumpsit, he is said to waive the tort." Keener, Quasi Cont. 159; Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St Rep. 721. If the plaintiff waives the wrongful character of the taking, or makes his election, by recovering the money as a debt, or otherwise, he thereby precludes himself from taking advantage of it as a tort. Brewer v. Sparrow, 7 Barn. & C. 310; Lithgoe v. Vernon, 5 Hurl. & N. 180; Thompson v. Howard, 31 Mich. 309; Huffman v. Hughlett, 11 Lea (Tenn.) 549. He cannot accept the proceeds of his goods which have been wrongfully taken and sold, as a debt, and likewise claim damages for the injury done in the wrongful taking and sale. Brewer v. Sparrow. 7 Barn. & C. 310. Moreover, he cannot waive the wrong, or make his election in part only. Therefore, if he accepts part of the proceeds or price of the goods, he is bound to treat the balance as a debt. Lythgoe v. Vernon, 5 Hurl. & N. 180. A mere claim to a debt in respect of the value of goods wrongfully obtained, if not acquiesced in by the other party, does not constitute an election so as to waive the tort. Valpy v. Sanders, 5 C. B. 886. See "Money Received," Dec. Dig. (Key-No.) § 8; Cent. Dig. § SO.

45 Neate v. Harding, 6 Exch. 349; Cory v. Freeholders. 47 N. J. Law, 181; Burton v. Driggs, 20 Wall. 125. 22 L. Ed. 299; Loomis v. O'Neal, 73 Mich. 582, 41 N. W. 701; People v. Wood, 121 N. Y. 522, 24 N. E. 952; Kidney v. Persons, 41 Vt. 386, 98 Am. Dec. 595; Lubert v. Chauviteau, 3 Cal. 458, 58 Am. Dec. 415; Kiewert v. Rindskopf. 40 Wis. 481, 1 N. W. 163, 32 Am. Rep. 731; Western Assur. Co. v. Towle, 65 Wis. 247, 26 N. W. 104: Gilmore v. Wilbur, 12 Pick. (Mass.) 120, 22 Am. Dec. 410; Dashaway Ass'n v. Rogers, 79 Cal. 211, 21 Pac. 742; O'Conlcy v. City of Natchez, 1 Smedea & M. (Miss.) 31, 40 Am. Deo. 87. See "Action," Dec. Dig. (Key-No.) § 2S; "Assumpsit," Cent. Dig. §§ 42-54.

46National Trust Co. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632. Bee "Money Received" Dec. Dig. (Key-No.) § 6; Cent. Dig. §§ 21-27.

47 Keener, Quasi Cont. 160, citing, among other cases, Patterson v. Prior,

It is impossible within the scope of this work to go at much length into the different circumstances under which the law will create this obligation. It must suffice to mention the most important.

Where a person steals another's money or property, or obtains it by false pretenses, the fact that a crime has been committed will not prevent a civil action by the person injured. He may sue the thief in tort, or he may elect to sue in assumpsit as for money received for his use.48

The same is true in any case in which one person, by means of trespass, fraud, or other tortious means, obtains another's money.49