Formerly a tortious action could only be relieved against by an action in tort. In a few cases, however, the injured party, is now allowed, to treat the tort as having created a contract, waive the tort, and sue in assumpsit, for his injury.

An important illustration of this class of cases is found where goods have been converted and then sold. Here the injured party can sue either on the tort, or for the value of the goods in contract.34 There must be an actual sale of the property under such circumstances. Barter or exchange is insufficient.35 It is also necessary that there should have been a benefit to the tort feasor,36 and a detriment to the plaintiff.37 When the action is thus brought in assumpsit the plaintiff waives damages, and the limit of recovery is the amount actually received for the goods by the tort feasor.38

33 Skinner vs. Skinner, 38 Neb., 756; Hayes vs. Acre, Conf. Rep., 19.

34 Bowman vs. Browning, 17 Ark., 599; Gilmore vs. Wilbur, 12 Pick, 124; Watson vs. Stever, 25 Mich., 386; White vs. Brooks, 43 N. H., 402; Budd vs. Hiler, 27 N. J. L., 43.

35 Fuller vs. Duren, 36 Ala., 73; 76

Am. Dec, 238. 36 Webster vs. Drinkwater, 5 Me.,

319. 37 Phillips vs. Homfray, 24 Ch. D.,

439. 38 Saville vs. Welch, 58 Vt, 683.

Other cases where the tort may be waived and an action be brought in assumpsit are, where one person has wrongfully obtained another's money, where one person has enticed away the servant of another;39 and in cases where the action is based upon the wrongful use of real property.40 The right to waive tort and sue in assumpsit will never exist in the case of a mere naked trespass.41

39 Foster vs. Stewart, 3M.4S., 191.

40 Byrd vs. Chase, 10 Ark., 602; Sampson vs. Schaeffer, 3 Cal., 196; McNair vs. Schwartz, 16 I11., 24.

41 Patterson vs. Priot, 18 Ind., 440; 81 Am. Dec., 367; Tightmeyer vs. Mongold, 20 Kan., 90.