Kelty v. Owens
Wisconsin Supreme Court
ERROR to the County Court for loiua County. 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.
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ERROR to the County Court for loiua County. 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. At the trial the plaintiff produced a witness who testified that he sold the plaintiff two hundred fence rails; that they were part of them in a fence around defendant’s garden, aud part of them scattered on the ground; that he bad previ-ousty loaned them to defendant. Another witness testified…
1Per curiam
There 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…
2Cited by2 opinions
- Elliott v. JacksonWisconsin Supreme Court · 1854
- Hollehan v. RoughanWisconsin Supreme Court · 1885