It is fundamental that assumpsit cannot be maintained against a tort-feasor unless it appears that he has reaped a benefit from his wrongful act.1 In the consideration of this element of the obligation, two questions must be answered: first, must the benefit consist of money received by the tort-feasor ? second, must the benefit consist of something taken from the party injured?
Sec. 273. Same : Must benefit consist of money received ? - In the cases in which the fiction of a promise by the tort-feasor was first indulged, the benefit sought to be recovered in assumpsit consisted of money realized from the sale of the plaintiff's goods.2 It has been contended that the doctrine, properly conceived, has no wider application; or at least that the only form of assumpsit maintainable against the tort-feasor is that of money had and received to the plaintiff's use.3 This view is taken in the frequently quoted Massachusetts case of Jones v. Hoar,1 in which Chief Justice Parker said:
1 Minor v. Baldridge, 1898, 123 Cal. 187; 55 Pac. 783; Patterson v. Prior, 1862, 18 Ind. 440; 81 Am. Dee. 367; Fanson v. Linsley, 1878, 20 Kan. 235; National Trust Co. v. Gleason, 1879, 77 N. Y. 400; 33 Am. Rep. 632.
2 See Lamine v. Dorrell, 1705, 2 Ld. Raym. 1216; Hitchin v. Campbell, 1772, 2 Wm. Bl. 827; Hambly v. Trott, 1776, Cowp. 371; Longchamp v. Kenny, 1779, 1 Doug. 137.
3 Pike v. Bright, 1856, 29 Ala. 332; Bowman v. Browning, 1856, 17 Ark. 599; Woodruff v. D. Zaban & Son, 1909, 133 Ga. 24; 65 S. E. 123; 134 Am. St. Rep. 186; Rogers v. Greenbush, 1869, 57 Me. 441; 4 Am. Rep. 292; Quimby v. Lowell, 1897, 89 Me. 547; 36 Atl. 902; Jones v. Hoar, 1827, 5 Pick. (Mass.) 285; Watson v. Stever, 1872, 25 Mich. 386; Sandeen v. Kansas City, etc., R. Co., 1883, 79 Mo. 278; Carson River Lumbering Co. v. Bassett, 1866, 2 Nev. 249; Smith v. Smith, 1862, 43 N. H. 536; Willet v. Willet, 1834, 3 Watts (Pa.) 277; Boyer v. Bullard, 1883, 102 Pa. St. 555; Stearns v. Dillingham, 1850, 22 Vt. 624; Kidder v. Sowles, 1872, 44 Vt. 303. And see 15 Am. & Eng. Ency. of Law (2d ed.) 1116; 4 Cyc. 334, n. 68.
"The whole extent of the doctrine, as gathered from the books, seems to be, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrongdoer sell the goods and receive the money, waive the tort, affirm the sale, and have an action for money had and received for the proceeds."
In the majority of cases, as in Jones v. Hoar, no serious attempt to justify this limitation of the doctrine is made. Of the arguments that have been advanced in its favor, the opinion in Sandeen v. Kansas City, St. Joseph & Council Bluffs Railroad Company,2 affords a fair example. Said Martin, C, speaking for the court in that case:
"This extension of the doctrine [to cases where converted goods have not been sold by the tort-feasor] would tend to do away with the action of tort, for perhaps in a majority of the wrongs inflicted the wrongdoer receives some benefit. It is generally with the expectation of some benefit that he incurs the liability of guilt. The inherent weakness of the doctrine consists in the arbitrary substitution of a promise, which cannot be found in anything which the party to be charged has said or done. Nothing could be further from his intention than an actual promise. It is the extreme of fiction to impose the deliberation, solemnity, and obligation of a sale upon the actual facts of a highway robbery."
Undoubtedly it is, as the learned court said, the extreme of fiction. But it is likewise the extreme of fiction to declare that the money realized by a highway robber from the sale of his booty is received by him "to the use " of his victim. For that matter the whole law of quasi contract, from the remedial point of view, depends upon the fiction that the defendant has promised to do that which in justice he ought to do.
11827, 5 Pick. (Mass.) 285, 290. 2 1883, 79 Mo. 278, 282.
That the doctrine of election extends to all cases in which the tort results in the enrichment of the wrongdoer, whether the benefit received by him consists of money or of something else, would seem to be the broader and truer view.1 And perhaps its strongest and clearest expression is found in the North Dakota case of Braithwaite v. Aiken,2 in which Corliss, J., said:
"But we are of the opinion that this limitation of the doctrine that the tort may be waived is without foundation in reason or principle. The whole doctrine is built upon a fiction. It asserts that what was done in defiance of the owner's rights was in law done with the most perfect regard for his rights; that the wrongdoer has received the money for the owner, or that he has bought the property from the owner at its fair value. "This fiction is indulged only in the interests of the owner, and it rests upon the receipt by the wrongdoer of benefits accruing to him from his wrongful acts. Where no benefits are received, the liability is only for the wrong. As this right in the injured party to turn the tort liability into a contract liability stands upon the receipt of benefits by the wrongdoer, is it not beneath the dignity of any tribunal to draw a distinction between the receipt of benefits in the shape of cash and the receipt of benefits in the form of property ? In our judgment the fact that a sale has not been made is unimportant."
Sec. 274. Same : Must benefit consist of something taken from injured party? - Perhaps it was arguable at one time that the obligation of a tort-feasor in assumpsit is analogous to that of a constructive trustee and that he should be held accountable for any profits derived by him from his wrongful act. It seems to be now taken for granted, however, that the obligation is not to account for profits but to make restitution. It follows that it is not enough to show that the defendant has been enriched by his wrong; it must further appear that the benefit received by him has been taken from the plaintiff. As Professor Keener puts it, there must be "not only a plus, but a minus quantity."
1 Roberts p. Evans, 1872, 43 Cal. 380; Toledo, etc., R. Co. v. Chew, 1873, 67 111. 378; Fanson v. Linsley, 1878, 20 Kan. 235; Aldine Mfg. Co. v. Barnard, 1891, 84 Mich. 632; 48 N. W. 280, (but cf. Tuttle v. Campbell, 1889, 74 Mich. 652, 662; 42 N. W. 384; 16 Am. St. Rep. 652; Brown v. Foster, 1904, 137 Mich. 35; 100 N. W. 167); Downs v. Finnegan, 1894, 58 Minn. 112; 59 N. W. 981; 49 Am. St. Rep. 488; Crane v. Murray, 1904, 106 Mo. App. 697; 80 S. W. 280; Hirsch v. Leatherbee Lbr. Co., 1903, 69 N. J. L. 509; 55 Atl. 645; Terry v. Munger, 1890, 121 N. Y. 161; 24 N. E. 272; 8 L. R. A. 216; 18 Am. St. Rep. 803; Braithwaite v. Aiken, 1893, 3 N. D. 365; 56 N. W. 133; Norden v. Jones, 1873, 33 Wis. 600; 14 Am. Rep. 782. And see 15 Am. & Eng. Ency. of Law (2d ed.) 1116; 4 Cyc. 334, n. 69.
21893, 3 N. D. 365, 370; 56 N. W. 133.