Woodruff v. Son

• Decision Date: 30 June 1909
• Citation: 133 Ga. 24,65 S.E. 123
• Court: Georgia Supreme Court
• Parties: WOODRUFF et al. v. D. ZABAN & SON et al.

65 S.E. 123

(133 Ga. 24)

WOODRUFF et al.

v.D. ZABAN & SON et al.

Supreme Court of Georgia.

June 30, 1909.

Action (§ 28^*)—Contract oh Tort—Waiver or Tort—Suit in Assumpsit.

Where a petition alleges that the plaintiffs own specified personalty, and the only conversion by the defendants alleged is that they "wrongfully and tortiously took possession of said personal property, and carried said personal property away, thereby converting same to their own use, with the intent to deprive the plaintiffs of said personal property, " and such petition further alleges that the plaintiffs waive the tort and sue for the value of the personal property, held:

(a) Such petition is subject to demurrer on the ground that the plaintiffs cannot maintain an action in assumpsit for the value of the property, but their remedy is confined to an action ex delicto.

(b) Where such action is brought for the value of the property, and the plaintiffs in their petition expressly waive the tort, the action cannot be maintained as an action ex delicto, and the petition should be dismissed upon an appropriate demurrer thereto.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 198-203; Dec. Dig. § 28.*1

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by D. Zaban & Son and others against G. W. Woodruff and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Payne, Jones & Jones, for plaintiffs in error.

F. M. Hughes, Morris Max, and J. D. Kilpatrick, for defendants in error.

HOLDEN, J. The defendants in error brought suit against the plaintiffs in error for the value of certain personalty described in their petition, which alleged that plaintiffs were the owners of the property, and that defendants wrongfully and tortiously took possession of the property and converted it to their own use, and "carried said personal property away, thereby converting same to their own use with the intent to deprive the plaintiffs of said personal property." Plaintiffs allege that the value of the property was $3,365.85 at the time of the conversion, and made the following allegations: "Wherefore, waiving the tort and suing for the value of said personalty, plaintiffs bring this suit, and pray joint and several judgment for the value of said personal property, together with interest on said value from the 3d day of February, 1906, the date of said conversion." To the petition the defendants filed a demurrer on several grounds, one of which was that, while the plaintiffs might have a right of action ex delicto against the defendants, they are restricted to that form of action, and have no cause of action ex contractu for the value of the property alleged to have been converted as against the defendants. To an order of the court overruling the demurrer the defendants excepted.

Where one unlawfully takes the goods of another and sells the same and receives the purchase money therefor, the latter may bring an action ex delicto, or he may waive the tort, affirm the sale, and bring against the wrongdoer an action for money had and received and recover the same. Southern Ry. Co. v. Born Steel Range Co., 122 Ga. 658, 50 S. E. 488; Bates v. Bigby, 123 Ga. 729, 51 S. E. 717; Cragg v. Arendale, 113 Ga. 181, 38 S. E. 399. All of the authorities seem to be in accord with the rule above announced. But, as stated in 4 Cyc. 332-334, "the authorities differ, however, as to the right of the owner to sue in assumpsit where the wrongdoer has not sold or otherwise disposed of the property, but retains it for his own use. One line of decisions denies the right to bring an action of assumpsit in such case —the other line upholds such right." See, also, 15 Cyc. 255; 15 A. & E. Ene. Law, 1116. In the case of Spencer v. Hewett, 20 Ga. 426, the headnote is as follows: "The defendant took the plaintiff's wagon without the plaintiff's consent, and exchanged it for another wagon, which he brought to plaintiff in place of his. This the plaintiff would not receive, but sued the defendant in the form of 'an action on account, ' authorized by the act...