Guthrie v. Wickliffe

• Decision Date: 02 December 1817
• Citation: 8 Ky. 83
• Parties: Adam Guthrie et al. v. Martin D. Wickliffe et al.
• Court: Kentucky Court of Appeals

8 Ky. 83

Adam Guthrie et al. v. Martin D. Wickliffe et al.

Court of Appeals of Kentucky.

December 2, 1817

ON A WRIT OF ERROR TO REVERSE A JUDGMENT OF THE NELSON CIRCUIT COURT.

Bibb for plaintiffs in error.

Wickliffe and Hardin for defendants.

OPINION

OWSLEY, JUDGE:

In determining the present contest, this court deem it material barely to enquire, whether, after a tortious taking of property, assumpsit can be maintanied by the owner upon a subsequent promise to pay.

On a tortious taking of goods, the owner may bring either trespass or trover; or if goods have been sold, he may maintain assumpsit for the price.

According to the well settled doctrine of the English law, it is perfectly clear, that the owner may either bring trespass for the taking of his goods, or waive the tort in taking, and bring trover for the conversion, and if money has been received by the sale of the goods, an action for money had and received upon the implied promise to pay, may be maintained.

If, therefore, the tort may be waived and assumpsit maintained upon the implied promise resulting from the receipt of the money, no reason is perceived why, upon waiving the tort, assumpsit may not, before conversion of the goods into money, be maintained upon an express promise to pay. In the latter case, the defendant, as he has expressly undertaken to pay for the goods, is less liable to surprise on the trial, than he would be in the former case, where his undertaking can only be implied by operation of law; and in either case a recovery would be an effectual bar to any other action, whether trespass or trover brought for the same goods.

If the tort feazor promises to pay for the goods, the owner may maintain assumpsit on the promise.

The judgment of the court below, therefore, as it was hypothecated on the supposition, that such an action could not be sustained, must be reversed with costs the cause remanded, and further proceedings had not inconsistent with this opinion.