Smith v. McCarthy

The opinion of the court was delivered by Johnston, J.:

*311

1. Pleadings— waiver of tort; action on contract. 2. Action on contract, not tort.

*310 The chief ground upon which a reversal of the judgment is asked, is the exclusion of the evidence which was offered to prove the several demands of Mary Smith, alleged as set-offs against the plaintiff’s petition. Both parties *311 claimed a special ownership in the hogs — the value of which is in controversy here — under chattel mortgages alleged to have been executed about the same time; but it seems to be conceded that the mortgage given to Frank McCarthy is prior to that of Mary Smith, if the one under which she claims was ever executed. Notwithstanding the fact that McCarthy had the first and superior right to the hogs, Smith took possession of the same and sold them, without having the consent of either McCarthy or the mortgagor. For this taking and sale of the hogs, McCarthy was entitled to recover; and the result of this proceeding depends upon the nature of the action which he brought. If the action was one of tort for the conversion of the hogs, then no set-offs could be pleaded or proved by the defendant, and the ruling of the court in excluding the evidence to sustain the same was correct. It is well settled, however, that where one wrongfully takes and sells the property of another, the law implies a contract to. pay for the same? and the owner may elect to waive the tort and bring an action on the implied contract, for the value of the property so taken and disposed of. (Stewart v. Balderston, 10 Kas. 142 ; Tightmeyer v. Mongold, 20 id. 90; Fanson v. Linsley, 20 id. 235.) Whether the plaintiff below waived the tort and brought his action on the contract, is to be determined from the pleadings. The allegations contained in the petition and reply together, we think, characterize the action, and settle that it is ex oontractu, instead of ex de The plaintiff stated such facts as were neceasaiy to sustain an action for a recovery upon the implied contract which the law raises, and none indicating a purpose to rely on the tort, except in using the words, “ did convert the same to her own use and benefit.” The plaintiff alleges that he was the owner of the hogs, the character of the ownership, the taking of the same for the benefit of the defendant, that their value was $7 per head, and that all were of the value of $350, a demand for the value, and a refusal, and closes with a prayer for a recovery of the alleged value. There is no specific allegation of wrong or fraud, or of injury *312 to the plaintiff from the tortious taking. Neither does he allege or claim any damages by reason of the tort, but the amount which he claims is confined exactly to the alleged value of the hogs. The prayer of the petition also indicates an intention of the pleader to waive the tort and rely on the implied promise; and even the words quoted in regard to the conversion are not inconsistent with that form of action. They may be treated as surplusage, and do not necessarily fix the character of the action. As the law vests him with the election of the kind of action he shall bring, it devolved upon him to make his purpose plain by his pleadings, and not mislead the defendant. The defendant, as we think he had a right to, proceeded upon the theory that it was a cause of action ex contractu, and the plaintiff's reply shows more clearly perhaps than anything else, that he so treated and intended it. Instead of demurring to the several counts of the answer alleging the set-offs, he treated them as properly pleaded by replying that the obligation of the injunction bond had not accrued at the commencement of the action, that the judgment against him had been satisfied by the money derived from a levy on and sale of his property, and that the note and other demands set up in the answer had been fully paid and satisfied. It is clear from these allegations that at this time the plaintiff was proceeding upon the theory that the tort was waived, and the action was one upon the implied contract. We think under a fair interpretation of the pleadings, that the action is, and was intended to be, one on contract, and not on the tortious conversion of the property. (St. L., Ft. S. & W. Rld. Co. v. Chenault, 36 Kas. 51 ; Conaughty v. Nichols, 42 N.Y. 83 ; Graves v. Waite, 59 id. 159 ; Austin v. Rawdon, 44 id. 63; Vilmar v. Schall, 61 id. 564; Greentree v. Rosenstock, 61 id. 588; Harris v. Todd, 16 Hun, 248 ; Gardner v. Risher, 35 Kas. 93 .)

3. construction or pleadings. This view of the pleadings is in accord with the general policy of the code that all claims existing be-£ween parties shall so far as practicable be settled in a single action, and conforms to that liberal and salutary *313 rule of the code to be applied in the construction of pleadings, which is calculated to do substantial justice between the parties expeditiously and inexpensively. (Civil Code, §115.)

The other errors assigned cannot be sustained; but for the exclusion of the testimony offered in support of the set-offs alleged in the answer, there must be a reversal of the judgment, and a new trial.

All the Justices concurring.