(Superior Court of Delaware. Sussex. Oct. 7. that after he had obtained possession of the

(108 A.)

weight of modern authority, a person may [ The modern rule is that a promise will be declare in indebitatus assumpsit against any implied in law to pay the value of a chattel disseisor of his chattels, using the count for wrongfully taken, whether sold or detained, goods sold and delivered, the sale of course and all the cases have been cited from that being a fiction, no matter whether the chat- view point. Whatever may be the judgment tels have been sold and the proceeds re- of this court in respect of the case of Hutton tained or not; and this is especially true v. Wetherald, supra, relied on by the defendwhere there is some contractual relation beant, that case may well be differentiated from tween the parties, or circumstances from which the law may imply a promise. It was also contended by plaintiff that the jury might imply a contract of sale as a fact from the evidence.

The court directed a verdict for defendant, and thereupon plaintiff moved for a new trial upon the ground, inter alia, of the alleged misdirection.

Because of the question of law raised, and in view of the case of Hutton v. Wetherald, supra, and other decisions by the court, the Superior Court, upon application of the plaintiff, directed that the motion for a new trial be heard by the court in banc.

Argued before BOYCE, CONRAD, RICE, and HEISEL, Associate Judges, constituting the court in banc, at the June term of the Superior Court, 1919.

It was urged for the plaintiff that the weight of modern authority permits a recovery in assumpsit upon a state of facts such as are presented in this case; and that certainly the law demands the employment of this action to recover from the defendant that to which he is not, in good faith, entitled, and which at the same time enriches him. It was conceded that it is sometimes said that this action will not be permitted, that is the tort waived and a suit brought on contract, unless the tort-feasor has converted the property into money. This is due it was said to the fact that for a long while, in the history of the English law, the count for money had and received was the only form of indebitatus assumpsit which was used in cases involving the waiver of tort. 2 Street, Foundations of Legal Liability, 216.

But it was insisted that in a case like this, the plaintiff may declare in indebitatus assumpsit against the disseisor of chattels using the count for goods sold and delivered, the sale of course being a fiction. 2 Street, 216; 2 Greenl. Ev. § 108.

The basis of the waiver of tort is the unjust enrichment of the tort-feasor.

The measure of recovery is the amount which it is against conscience for the defendant to keep. Keener, Quasi Contracts, 159, 160, 183.

the case at bar, in which the defendant obtained possession of the wagon wrongfully, that is, by artifice, fraud or trick, but in form as a bailee. According to the testimony for the plaintiff, when the defendant left the plaintiff and Mitchell, he was consciously in possession of the plaintiff's chattel, as bailee, knowing that the plaintiff was willing to sell, and knowing the plaintiff's estimation of its value; and a demand for the chattel, and a refusal to deliver it following, it was within the province of the jury to ascertain from all the facts and surrounding circumstances whether an implied promise to pay its value did or did not result.

For the defendant it was said, all the authorities agree that where personal property is tortiously taken or converted into money or money's worth, the owner may waive the tort and sue the wrongdoer in assumpsit for its value. 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 decision denies the right to bring an action of assumpsit in such cases; to this line, the decisions in this state adhere, as in Hutton v. Wetherald,

5 Har. 38.

In the case in hand the testimony of the plaintiff was to the effect that he never sold the wagon to Pepper, that Pepper took it wrongfully and still holds it; that there was never any contract or agreement between him and l'epper express or implied for the sale and delivery of the wagon.

Many cases, including the leading case of Jones v. Hoar, 5 Pick. (Mass.) 285, were cited. Valuable notes, discussing the question raised in this case, will be found in 17 Ann. Cas. 975, 49 Am. St. Rep. 492, and 134 Am. St. Rep. 189.

HEISEL, J., delivering the opinion of the

court:

We are of opinion the jury would not be justified in implying a contract of sale, as a fact, from the evidence.

Can the plaintiff, where there is a tortious or wrongful taking or detention of personal property, which has not been sold by the tortfeasor, waive the tort and recover the fair

The question of waiving the tort has arisen in a class of cases suggested by, and yet differing from, those in which the defendant has wrongfully used the plaintiff's personal prop-value thereof, in an action of assumpsit uperty, namely, where the defendant has converted the property, but, instead of selling, either keeps it or has consumed it. Here the decisions are in conflict. Keener, Quasi Contracts, 192.

on a count for goods sold and delivered? Hutton v. Wetherald, 5 Harr. 38, decided by the Superior Court of this state in 1848, following Jones v. Hoar, 5 Pick. (Mass.) 289, answered that question in the negative.

After a very careful consideration of the argument and briefs of counsel, we feel, however, that the great weight of authority is now to the contrary, and that the better rule is to allow recovery in such actions.

MYERS et al. v. FORTUNATO. (Court of Chancery of Delaware. Oct. 10, 1919.)

In Jester et al. v. Knotts, 7 Boyce, -, 57 MUNICIPAL CORPORATIONS 601 ORDIAtl. 1094, the Superior Court, in stating what is universally held to be the law where the property wrongfully taken has been sold by taker, said:

"If one tortiously takes possession of property, and sells it, and thereby comes into possession of money belonging to another, the law will not permit him to deny an implied promise to pay the proceeds as money had and received to the use of the party entitled. The owner of the property thus taken and disposed of may either disaffirm the act, and treat the taker as a wrongdoer, and sue him for a trespass or for a conversion of the property, or he may waive the tort, affirm the act, and have an action like this for money had and received from the proceeds of the sale."

NANCE PROHIBITING PUBLIC GARAGE WITH-
OUT CONSENT OF ADJOINING OWNERS IN-
VALID.

Ordinance of the city of Wilmington declaring no permit shall be granted by the building inspector for the erection of a public garage in the residential portion of the city within 40 feet of adjoining land without the consent of the owners of such land held invalid.

Bill for injunction by Mary E. Myers and others against Agostino Fortunato. On demurrer to the bill. Demurrer sustained.

Robert G. Harman, of Wilmington, for complainants.

Daniel O. Hastings, of Wilmington, for defendant.

of adjoining land, without the consent of the owners of such adjoining land.

After

It would seem that every reason for allowTHE CHANCELLOR. The bill asks that ing a recovery in assumpsit, upon a count for money had and received, of the amount for the defendant be enjoined from erecting a which the property was sold, will apply with public garage on his land which adjoins land equal force, to a case for the recovery of the of the complainants, and the basis of the fair value of the property, upon a count for right claimed is that the complainants had goods sold and delivered, where the property not consented thereto. An ordinance of the is not sold, but retained or consumed by the City of Wilmington declares that no permit tort-feasor. 2 Street, Foundations of Legal shall be granted by the Building Inspector Liability, 216; 3 Street, 199; Keener, Quasi for the erection of a public garage in the resCont. 192; 2 Page on Cont. § 843; 2 R. C.idential portion of the city within 40 feet L. 756, 757; Woodruff v. Zaban, 17 Ann. Cas. 975 (note) 977; 1 Cooley on Torts, §§ 109-111; 1 Hilliard on Torts, 47; Putnam v. Wise, 1 By the demurrer to the bill the questions Hill (N. Y.) 240 (note); Hill v. Parrott, 3 raised are the same as those raised in the Taunton, 274; Bradfield v. Patterson, 106 case of Dangel v. Williams, 99 Atl. 84, and Ala. 397, 17 South. 536; Roberts v. Evans, 43 there considered and decided by me. Cal. 380; Fountain v. Sacramento, 1 Cal. App. reviewing my opinion and considering the 461, 82 Pac. 637; City of Elgin v. Joslyn, 136 authorities submitted by the solicitor for the Ill. 525, 26 N. E. 1090; Reynolds v. N. Y. complainants, I find no reason to change any Trust Co., 188 Fed. 611, 110 C. C. A. 409, 39 of the views expressed in the opinion filed in L. R. A. (N. S.) 309: Douns v. Finnegan, that case. I did not find, as the solicitor for 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. the complainant did, “a wilderness of cases" 488; Crane v. Murray, 106 Mo. App. 697, 80 bearing on the validity of an ordinance S. W. 280; Galvin v. Mac Mining & Milling granting to private persons the power to Co., 14 Mont. 508, 37 Pac. 366; Abbott v. make an ordinance effective, though there Blossom, 66 Barb. (N. Y.) 353; Terry v. Mun- may be many conflicting decisions as to the ger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. validity of an ordinance which confers upon 216, 18 Am. St. Rep. 803; Braithwaite v. an administrative official, or official board, Akin, 3 N. D. 365, 56 N. W. 135; Barker v. power to grant or withhold permission for Cory, 15 Ohio, 9; Albrook v. Hathaway, 3 the carrying on of a particular trade or busiSneed (Tenn.) 454; Tidewater Quarry Co. v. ness. This latter question, and not the forScott, 105 Va. 160, 52 S. E. 835, 115 Am. St. mer one, is discussed in 11 Dillon on MuniciRep. 864, 8 Ann. Cas. 736; Livingstone v. Lov-pal Corporations (5th Ed.) § 598, p. 934. The gren, 27 Wash. 102, 67 Pac. 599; Norden v. distinction between the two questions is clear Jones, 33 Wis. 600, 14 Am. Rep. 782.

We are of opinion a new trial should be granted. It is ordered that the foregoing opinion and decision be and it is hereby certified to the Superior Court, Sussex County. The opinion being so certified, the Superior Court awarded a new trial.

and has not been borne in mind by the solicitor for the complainant, for the cases cited by him, such as Fischer v. St. Louis, 194 U. S. 361, 24 Sup. Ct. 673, 48 L. Ed. 1018, and others, were of the latter class. As Mr. Dillon says, some of the courts which have sustained ordinances of the latter kind do so be

(108 A.)

cause it cannot be assumed that the official | makes it, we think, an unreasonable exercise will act arbitrarily or otherwise than in the of the police power." exercise of a sound discretion. But it seems This vice exists as clearly in the one as in to me clear that private persons to whom as the other of the ordinances considered by the owners of land is given the power to control Supreme Court of the United States, and the the use by the owners of adjoining land of distinction which the court drew in the lattheir property, are presumably governed by est case does not seem reasonable. The two self interest, and are more apt than an offi- decisions are conflicting, and I find the earlicial to be arbitrary and unjust when their er one more convincing. As the same vice own interests are affected. Obviously, then, decisions which uphold the validity of an or-mington, I must, for that reason, hold to the appears in the ordinance of the City of Wildinance giving to a single official arbitrary view heretofore expressed, and power to make effective an ordinance do not again that the ordinance is invalid. apply to legislation which gives such power to private persons when control is thereby given them over the use of land of other private persons.

declare

The demurrer to the bill will be sustained.

(118 Me. 437)

CARPENTER v. HADLEY.

1920.)

1. LIMITATION OF ACTIONS

83(2)—ACTION

ON NOTES MATURING AFTER DEATH AGAINST
ADMINISTRATOR APPOINTED LONG THEREAFT-
ER NOT BARRED.

Where the administrator for the estate of the deceased maker of notes was not appointed the notes, an action on the notes is barred as until more than six years after the maturity of to those which matured before the death, but not as to those maturing thereafter.

2. LIMITATION OF ACTIONS 6 (1)-ADMIN

One decision rendered since the opinion was filed in Dangel v. Williams, supra, has been cited to uphold the ordinance, viz., Cusack Co. v. City of Chicago, 242 U. S. 526, 37 (Supreme Judicial Court of Maine. Jan. 19, Sup. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594. There an ordinance prohibiting the erection of bill boards in residence sections of the city of Chicago without first obtaining the consent of the majority of the owners of land on both sides of the street in the block was held valid. The court pointed out that as that ordinance had been declared valid by the Supreme Court of Illinois, it must be so considered by the Supreme Court of the United States unless the record shows it to be clearly unreasonable and arbitrary. The opinion then considers this feature, which is different from the question as to a delegation of legislative power. Notwithstanding this, the opinion in the Supreme Court of the United States, ater the enactment of Rev. St. c. 86, § 109, as the Supreme Court of the United States, at added by Pub. Laws 1917, e. 133, § 13, barring the end thereof, discussed the question of the certain actions against decedents' estates, but delegation of legislative power, and under-before that act took effect, the administration took unsuccessfully, it seems to me, to dis- was pending so as to be excepted from the act tinguish the ordinance before it from that by its terms. considered in Eubank v. Richmond, 226 U. S. 137, 33 Sup. Ct. 76, 57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B, 192. In the latter case the court pointed out that the vice of such legislation is the control of the property of one person by other owners of property exercised under the ordinance. The court thus expressed the true principle:

"We are testing the ordinance by its extreme possibilities to show how in its tendency and instances it enables the convenience or purpose of one set of property owners to control the property right of others, and property determined, as the case may be, for business or residence-even, it may be, the kind of business or character of residence. One person having a two-thirds ownership of a block may have that power against a number having a less collective ownership. If it be said that in the instant case there is no such condition presented, we answer that there is control of the property of the plaintiff in error by other owners of property exercised under the ordinance. This, as we have said, is the vice of the ordinance, and

ISTRATION BEGUN BETWEEN ENACTMENT AND
EFFECTIVE DATE OF ACT IS "PENDING."

Where an administrator was appointed aft

3. LIMITATION OF ACTIONS 6(1)—ACT BAR

RING ACTIONS AGAINST ESTATES NOT RETRO-
ACTIVE.

Rev. St. c. 86, § 109, as added by Pub. Laws 1917, c. 133, § 13, barring actions against estates where no administrator is appointed for six years after the death, which makes no express reference to estates of persons deceased before its passage, will not be construed to apply to such estates, especially in an action against an administrator appointed 30 days before the act took effect, so that there had been no time for bringing a suit under Rev. St. c. 92, § 14.

Agreed Statement from Supreme Judicial Court, Waldo County, at Law.

Assumpsit by Ezra A. Carpenter against Herbert C. Hadley, as administrator of the estate of Charles H. Hadley, deceased. On agreed statement of facts. Judgment rendered for plaintiff for part of the amount sued for.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Upon the facts stated it appears that the administrator complied with the statute by filing the affidavit of notice of his appointment, and that the plaintiff delivered his claim to the administrator, and filed the same in the probate court as required by law. The action, then, is properly brought, and may be maintained, unless barred by limitation.

When this action was brought, the period of 18 months provided for in R. S. c. 86, § 95, amended by St. 1917, c. 133, for commencing suits against administrators had