This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
At the original English Common Law, an injured person who brought suit in contract, was not allowed to show an injury which really amounted to a tort as a means of proving the allegations of his complaint.1 In the early part of the eighteenth century the English courts began to hold that in some cases it was possible for the injured party to maintain an action in implied contract on an injury which really amounted to a tort.2 This principle has been extended and developed at Modern Law.3 This doctrine, of course, carries us beyond the limits of real contracts. The doctrine is really not one of substantive law at all, but one of adjective law. It determines the right of an injured party to elect between the remedies given by the actions in tort and in contract. The exact limits of the extent of this doctrine at Modern Law, are very indefinite. Different jurisdictions have very different views on the question of what cases fall within it. In discussing the various classes of cases brought under this doctrine, we will therefore begin with those on which there is the least divergence of authority. Since the doctrine of suing in implied contract upon a tort, is really a case of election of remedies, the election of one remedy when complete bars the other. Thus where several persons detach machinery, and carry it away, and an action is subsequently brought against two of such persons in assumpsit, and judgment is obtained, the injured party cannot subsequently sue the remaining wrongdoers in tort.4 The action against a wrongdoer on an implied contract, lies to recover the value of property taken wrongfully from the real owner and received by the wrongdoer. One of several joint wrongdoers is liable in tort, and cannot be held in implied contract if he did not receive the property converted, or the proceeds thereof.5 So the amount of recovery is limited to the value of the property appropriated by the wrongdoer and not by the damage done to the owner of the property. If A removed sand from B's land with B's acquiescence, both parties, however, laboring under a mistake of fact and thinking that the land came within the limits of the property sold by A to B, B may recover from A in assumpsit for the value of the sand thus converted.6
5 Geneseo v. Natural Gas Co., 55 Kan. 358; 40 Pac. 655.
6 Edmunds v. Depper. 97 Ky. 661; 31 S. W. 468.
1 Phillips v. Thompson, 3 Lev. 191.
2 Lamine v. Dorrell, 2 L. Ray. 1216; decided 1705 A. D.
3 Seavey v. Dana, 61 N. H. 339 ; Smith v. Smith, 43 N. H. 536.