Fuller v. Duren
Supreme Court of Alabama
Appeal from the Circuit Court of Tallapoosa. Tried before the Hon. Robert Dougherty. This action was brought by Mrs. Malila Duren, against G-allatin Fuller, and was commenced in a justice’s court.
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Appeal from the Circuit Court of Tallapoosa. Tried before the Hon. Robert Dougherty. This action was brought by Mrs. Malila Duren, against G-allatin Fuller, and was commenced in a justice’s court. After the removal of the cause to the circuit court, the plaintiff there filed a complaint in the following words: “ The plaintiff clairps of the defendant fifty dollars, for goods, wares and merchandise, sold by plaintiff to defendant on the 1st of January, 1857 ; and the further sum of fifty dollars, for money had and received by the defendant, to and for the use of the plaintiff, on the 1st…
1Opinion of the CourtR. W. Walker, J.
Inasmuch as assumpsit lies only upon a promise, express or implied, and not to recover damages for torts or trespasses, a mere conversion of the goods of the plaintiff, without any sale of them, will-not support the action. The doctrine of waiving a tort and bringing assumpsit is confined to cases where the defendant has disposed of the plaintiff’s property, and received *77-either money, or some article or thing as money. — Pike v. Bright, 29 Ala. 336 ; Crow v. Boyd, 17 ib. 51; Strother v. Butler, 17 ib. 733. If the property has been sold, it makes no difference whether the price is received in…
2Cases cited4 opinions
- Gunter v. LeckeySupreme Court of Alabama · 1857
- Stewart v. ConnerSupreme Court of Alabama · 1846
- Smith v. CauseySupreme Court of Alabama · 1856
- Willet v. WilletSupreme Court of Pennsylvania · 1834
3Cited by17 opinions
- Whilden & Sons v. Merchants' & Planters' National BankSupreme Court of Alabama · 1879
- Howton v. MathiasSupreme Court of Alabama · 1916
- Fielder v. ChildsSupreme Court of Alabama · 1883
- Watson v. SteverMichigan Supreme Court · 1872
- Judge v. CurtisSupreme Court of Arkansas · 1904
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