If A has converted B's property to his own use, but has kept the property in his possession, and has not sold it, there is a divergence of authority upon the question of whether he can recover from A upon an implied contract. Some authorities hold that B cannot maintain an action for money had and received.1 This view is probably correct enough if we consider the nature of averments in an action for money had and received, and the total failure of proof that must follow in such cases. When we consider, however, that the entire action is brought upon a fiction, there seems no good reason for restricting the fiction arbitrarily in cases of this sort. In some jurisdictions this distinction seems to be recognized, and while an action for money had and received will not lie where the party converting the property to its own use still retains it, an action in account will lie.2 "The owner of goods in the possession of another party, who without legal excuse, refuses to deliver them to the owner on demand, may sue in tort for a conversion, or he may waive the tort and treat the wrongdoer as a purchaser and sue and recover upon account for their value."3 In these cases, however, possession of the property in question passed with the consent of the owner; a fact which in many jurisdictions gives a right to maintain assumpsit.

In many jurisdictions, however, it is held that the real owner of the property converted cannot recover from the wrongdoer in any form of action in implied contract, if the wrongdoer has not sold the property and received the proceeds thereof, and the original taking is unlawful.4 Thus if the wrongdoer has the property in his possession, as where he converted both to his own use and made a fence out of it,5 or if he has bartered it for other personal property,6 assumpsit will not lie. On this theory, in an action for money had and received, the real owner cannot recover if he cannot show the amount received by the wrongdoer on such sale.7 It has been said that to allow assumpsit in such cases would abolish all distinctions between actions ex contractu and those ex delicto8 But even where this theory obtains it is not necessary that payment should be actually received in money. If the property converted has been sold at a value estimated in money, he is liable in an action for money had and received even if he subsequently receives something other than money in discharge of the obligation due to him by reason of such sale.9 A different rule prevails in some states where the original taking is lawful, and with the consent of the real owner, and there is a subsequent unlawful conversion. If B delivers property to A voluntarily, and A subsequently refuses to return it, or pay for it, B may maintain assumpsit.10 Thus, if a bailee converts property to his own use, the bailor may waive tort, and sue in assumpsit.11 If A's property is sold with A's consent, and the price therefor is paid to B, B must account therefor to A in an action for money had and received. Thus, where certain stock was sold and the money was received by B, it was held a question of fact for the jury whose stock it was; and if the stock belonged to A, B would have to account to A for such money.12 So, where A forwarded butter to certain commission merchants, B, in the regular course of business, and B sold the same and received payment therefor, A may compel B to pay over such money to him after deducting commissions.13 So, if A, the owner of one-half of a patent right, has sold the entire patent right to a stranger, and received the money therefor, B, the owner of the other half, may maintain an action against A for one-half of such proceeds.14 So, a tenant in common who collects more than his share of the rents and profits of the realty owned in common, is liable to the other tenant in common in assumpsit.15 So, if one tenant in common mines and sells coal, and there is no dispute as to his right to do so, as to the amount of the coal mined, or as to his right to sell it at that price, but the only dispute is as to the amount which the other co-tenant is entitled to receive, the latter may maintain an action against the former.16 If A quarries stone on B's land, and takes it away, and either sells it or uses it, A is liable to B in assumpsit, not for the amount of the damage done to B's property, but for the value of the property thus converted by A.17 If a railroad company enters upon B's land and permanently appropriates it as a part of its right of way, and B acquiesces therein, B may recover against the railroad company indebitatus assumpsit.18

8 Burton Lumber Co. v. Wilder, 108 Ala. 669; 18 So. 552.

9 Moody v. Walker, 89 Ala. 619; 7. So. 246.

1 Snodgrass v. Coulson, 90 Ala. 347; 7 So. 736.

2Bradfield v. Patterson. 106 Ala. 397; 17 So. 536; Pharr v. Bachelor, 3 Ala. 237.

3Bradfield v. Patterson, 106 Ala. 397, 401; 17 So. 536.

4 Miller v. King, 67 Ala. 575; Smith v. Jernigan, 83 Ala. 256; 3 So. 515; Chamblee v. McKenzie. 31 Ark. 155; Barlow v. Stalworth. 27 Ga. 517; Kellogg v. Turpie, 93 111. 265; 34 Am. Rep. 163; Johnston v. Salisbury, 61 111. 316; Moses v. Arnold, 43 la. 187; 22 Am. Rep. 239; Quimby v. Lowell, 89 Me. 547; 36 Atl. 902; Androscoggin Water Power Co. v. Metcalf, 65 Me. 40; Allen v. Ford, 19 Pick. (Mass.) 217; Mc-Cormick Harvesting Machine Co. v. Waldo, 128 Mich. 135; 87 N. W. 55; St. John v. Iron Co., 122 Mich. 68; 80 N. W. 998; Tolan v. Hodgeboom, 38 Mich. 624; Tuttle v. Campbell, 74 Mich. 652; 16 Am. St. Rep. 652; 42 N. W. 384; Carson River Lumber Co. v. Bassett, 2 Nev. 249; Smith v. Smith, 43 N. H. 536; Allen v. Woodward, 22 N. H. 544; Bethlehem v. Perseverance Fire Co., 81 Pa. St. 445; Willett v. Willett, 3 Watts (Pa.) 277; Kidney v. Persons, 41 Vt. 386; 98 Am. Dec. 595.

5 Folsom v. Cornell, 150 Mass. 115; 22 N. E. 705.

6 Kidney v. Persons, 41 Vt. 386; 98 Am. Dec. 595.

7 Glasscock v. Hazell, 109 N. C. 145; 13 S. E. 789.

8 Kidney v. Persons, 41 Vt. 386; 98 Am. Dec. 595.

9 Fuller v. Duren, 36 Ala. 73; 76 Am. Dec. 318; Miller v. Miller, 7 Pick. (Mass.) 133; 19 Am. Dec. 264.

10 Grinnell v. Anderson, 122 Mich. 533; 81 N. W. 329; Newman v. 01-ney, 118 Mich. 545; 77 N. W. 9; Tuttle v. Campbell, 74 Mich. 652; 16 Am. St. Rep. 652; 42 N. W. 384; Ginsburg v. Lumber Co., 85 Mich. 439; 48 N. W. 952.

11 Newman v. Olney, 118 Mich. 545; 77 N. W. 9.

12 Shouldice v. McLeod's Estate, 130 Mich. 444; 90 N. W. 288.

13 Tucker v. Utley, 168 Mass. 415; 47 N. E. 198.

14 Currier v. Hallowell, 158 Mass. 254; 33 N. E. 497.

15 Hudson v. Coe, 79 Me. 83; 1 Am. St. Rep. 288; 8 Atl. 249.

16 Winton Coal Co. v. Coal Co., 170 Pa. St. 437; 33 Atl. 110.

17 Downs v. Finnegan, 58 Minn. 112: 49 Am. St. Rep. 488; 59 N. W. 981.