¶1There had been a conversion of the rails, as appears by the proof in this cause, and trover is the proper action, and not assumpsit or debt. In order to have sustained either of the last named actio'ns, the tortfeasor must have sold the rails and converted them into money, when the contract might have been affirmed, and the owner brought his action for the price. This is the doctrine in Massachusetts, Pennsylvania and New York, and we are not disposed to extend it here to mere cases of tort. We should hold, however, in cases where goods have been obtained by fraud, also where apprentices or servants work for a tortfeasor, or where the tortfeasor is dead, and the action of trover is lost, that assumpsit or debt would lie. The judgment must therefore be reversed.
3 Pin. 372
Kelty v. Owens
Decided December 15, 1851
Wisconsin Supreme Court · decided 1851-12-15
Action of debt brought by Owens against Kelty for the recovery of various matters of account and-for services rendered, and amongst other things, for two hundred and twelve fence rails at five dollars per hundred. The defendant pleaded nil debit and setoff.
Cited by 2 later decisions — most recently January 1885
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1851-12-15
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