The statutory period which bars actions for tort is frequently, if not generally, different from that which bars actions on contract. The question arises, therefore: is an action against a tort-feasor for restitution an action for tort or an action on contract? In form, of course, it is contractual, but unless the language of the statute clearly indicates a contrary intention, it seems but reasonable to suppose that the different periods are meant to apply, not to different forms of action, but to different causes of action, i.e. to different kinds of wrong. For there is no conceivable reason why, in the case of a particular wrong, one form of action should be available after another is barred; the purpose of the statute is that upon the expiration of the specified period no action shall be brought for the redress of the wrong. The question, then, should be stated in these terms: Is the cause of action against the tort-feasor a cause of action in contract, within the meaning of the term "contract" in statutes of limitation, or is it one in tort?
If the obligation of the tort-feasor to make restitution is genuinely quasi contractual, i.e. a primary obligation, it may well be that the term "contract" is broad enough to include it. But if, as seems probable (see ante, Sec. 270), the obligation is but a secondary one, arising, like the obligation to pay damages, upon the breach of the primary obligation not to commit the tort, the only cause of action, accurately speaking, is the commission of a tort, and the statutory limitation as to torts would seem to apply.
The former view, i.e. that the cause of action is in contract, as the term is used in the statute, rather than in tort, has the support of what judicial authority there is:
Kirkman v. Phillips, 1872, 7 Heisk. (54 Tenn.) 222: Attachment bill to recover the value of certain machinery. The bill was dismissed upon demurrer, the ground of demurrer being that the recovery sought by the bill being for a tort, the same was barred by the statute of limitation of three years. The Supreme Court held that the demurrer should not have been sustained, Nicholson, C.J., saying (p. 224): "If the original owner of the property elect to sue for the property, or for damages for the conversion, the action will be barred by the statute of three years. But if the party elects to sue for the value of the property, the action will be barred in six years. It is true, as argued, that a wrongdoer may obtain a title to the property by three years adverse possession, and yet be liable for three years after his title is perfected to pay the original owner the value thereof. This is a necessary consequence of the right which the original owner has to elect whether he will sue for property or its value. During six years his right to sue for the value is as perfect as his right to sue for the property within the three years. This right is not interfered with by the provisions of the Code abolishing the distinctions in the forms of actions. The statute of limitations applicable to the cause depends upon the nature and character of the action, and not upon its form. In the case before us, the complainant has elected to waive the tort and to sue for the value of the property converted, and in so doing he is entitled to the benefit of the six years statute." 1
Another question is now encountered: when does the statute commence to run ? The answer to this question depends upon the answer to the one just considered. If the statutory provision as to actions on contract applies, the period of limitation must be computed from the date of the implied or fictitious promise to make restitution, which is the date of the receipt by the defendant of the benefit reaped from the tort, but not necessarily the date of the commission of the tort. On the other hand, if the provision as to actions for tort applies, the period must be computed from the time of the commission of the tort, even though the benefit sought to be recovered is not received until a later date.
Although there is not much authority on this point either, it has been held in at least one case that the statute runs from the date of the receipt of the benefit sought to be recovered:
Miller v. Miller, 1828, 7 Pick. (Mass.) 133; 19 Am. Dec. 264: Assumpsit for money had and received. The defendant wrongfully sold wood standing on land belonging to him and the plaintiff's testator as tenants in common, and payments were made by the purchasers to the defendant at different times subsequent to the sales. The jury were instructed to find a verdict for the plaintiff for one half of the amount which the defendant had received within six years before the commencement of the action, and the Supreme Court upheld the instruction. Parker, C.J. (p. 136): "As to the objection founded on the statute of limitations, we think the jury were instructed right, viz. that the statute began to run from the time when the money was received, and not from the time of the sale of the wood. In this action the plaintiff affirms the sale and asks for his share of the proceeds.
1 See also Miller v. Miller, 1828, 7 Pick. (Mass.) 133; 19 Am. Dee. 264; Whitaker v. Poston, 1908, 120 Tenn. 207; 110 S. W. 1019, 1021, (approving Kirkman v. Phillips). But see Bell v. Bank of California, 1908, 153 Cal. 234, 242-3; 94 Pac. 889.
He had a right to waive his action of trespass given by the statute and to consider the defendant as his agent in disposing of the wood. This is for the benefit of the defendant, as he can deduct all reasonable charges, and is answerable only to the extent of funds which he has received."
A limitation of the doctrine of Miller v. Miller was established, however, in the later case of Currier v. Studley,1 in which it was held in substance that since one who wrongfully takes another's property and holds it until the right of the owner to recover it is barred by the statute becomes himself the owner, if he subsequently sells the property and receives the purchase price he cannot be held liable by the former owner for money had and received.2
Under the decisions in Kirkman v. Phillips and Miller v. Miller, and notwithstanding the wholesome limitation established by Currier v. Studley, the right to sue a tort-feasor in assumpsit may exist for many years after the right to sue in tort has been barred by the statute. Suppose, for example, that under a statute of limitations requiring actions on contract to be brought within six years and actions for conversion of goods within three years, A wrongfully takes B's goods on August 1, 1900, sells them on July 1, 1903, and receives the proceeds of the sale on June 1, 1904. The right to sue for conversion would be barred August 2, 1903, but assumpsit for goods sold, if allowed at all, would be available until August 2, 1906, and assumpsit for money had and received until June 2, 1910. Furthermore, in a jurisdiction in which the right to sue in assumpsit is limited to cases in which money has been received by the tort-feasor, there would be a period of ten months, between the barring of the right to sue for conversion and the inception of the right to sue for money had and received, during which B would be without any remedy.
1 1893, 159 Mass. 17; 33 N. E. 709.
2 This decision was anticipated by Professor Keener, who said, in his work on "Quasi-Contracts," at p. 177: "If the sale is not made until the injured party has lost his right to sue for the conversion, the tort-feasor has acquired title, and the sale was a sale of his own property."
The possibility of such an absurd result, it is submitted, proves the unwisdom of regarding the action in assumpsit, in these cases, as an action on contract. It would be much more reasonable to regard it as an action in tort, for then it might consistently be held that the statute runs from the date of the commission of the tort, and both remedies would be barred at the same time. It is true that in case the benefit resulting to the tort-feasor were not received by him within the period of limitation, the plaintiff would be deprived altogether of his election to sue in assumpsit; but in view of the fact that he has an action for damages in any event, this seems an evil of smaller proportions than that of allowing the plaintiff in many cases to defeat the policy of the statute of limitations by the simple expedient of electing to sue for money had and received instead of for damages.