#### Anderson and another vs. Case and another.

*(1)*Tboyeb. *Taking and, sale no conversion, if done 5y consent, given by mistake, without fraud.*

(2,3) Actions Ex Contbactu and Ex Delicto : *Fundamental*difference: *Cause of action for one, will not sustain judgment in the other.*

1. Where the second mortgagee of chattels takes and sells them with the consent of the first mortgagee, the latter cannot maintain an action *506against him as for a conversion, although such consent was given under afalse impression as to the respective rights of the parties to the proceeds of such sale, or as to the views of the second mortgagee on that subject, such false impression not having been created by fraud on his part.

2. The distinction between an action *ex delicto*and one *ex contractu*is not merely formal but substantial, in that an execution goes against the body in the former, and only against property in the latter.

3. A judgment for plaintiff in an action for a conversion will therefore be reversed for erroneous instructions, although the record shows that he would have been entitled to a judgment for the same amount in an action for money had and received.

APPEAL from tbe Circuit Court for *Juneau*County.

Tbe defendants appealed from a judgment in favor of tbe plaintiffs. Tbe case is stated in tbe opinion.

*John Turner*(with *S. U*Pinney, of counsel), for appellants.

*F.*Winsor, for respondents,

argued that a tortious taking and conversion were shown by tbe pleadings and proof; and to tbe point that even if this was not so, and if plaintiffs were not entitled to recover in tbis form of action, still, as they were clearly entitled to recover in an action for money bad and received, tbe judgment should be permitted "to stand, be cited Gra. and Wat. on N. T.; 2 Burr., 931; 2 W. Blacks., 1221; 3 Barn, and Cress., 357; 8 Mass., 336, 1 Ham. (Ohio), 168; 3 Johns., 105; 6 id., 270; 1 Mass., 237 : 7 id., 507.

Lyom, J.

Tbe complaint charges that tbe defendants unlawfully seized and converted to their own use certain,personal property therein described, in which tbe plaintiffs have an interest by virtue of a chattel mortgage thereon, executed by one J. D. Downer to secure bis indebtedness to them, to tbe amount of $155.75. Tbe answer of tbe defendants admits tbe taking of tbe property, and denies all other allegations of tbe complaint.

Tbe evidence shows that tbe chattel mortgage of tbe plaintiffs was filed in tbe proper town clerk’s office, October 1st, 1868, and that tbe defendants also bad a chattel mortgage *507upon tbe same property, executed by said Downer to secure bis indebtedness to them, which was filed in the. same office October 2d, 1868; that a part of such property, to wit, a quantity of hops, was shipped and sold by the defendants; that the balance of such property was seized by the defendants, and sold at public sale by virtue of their mortgage; and that the defendants received, and do retain, the whole of the proceeds of such sales.

The testimony tends to show that the defendants shipped and sold the hops with the consent and by request of the plaintiffs.

Before the public sale of the balance of the property, the parties entered into a written agreement relative to the proceeds of the sale thereof, which the circuit court held operated as a waiver of the alleged tortious taking of the property affected by it. This ruling of the circuit court, being in favor of the respondents, is not before us for review on this appeal.

The circuit judge instructed the jury, in substance, that if, after the defendants seized the hops, the plaintiff consented that they might ship and sell them, such consent was a waiver of the wrongful taking, and the only remedy of the plaintiffs in such case would be an action for money had and received to recover the proceeds of the sale thereof. But this instruction was given with the following qualification: *“*The force and effect of such consent, if any was given, would depend very much upon the plaintiffs’ understanding of the defendants’ claim. If they understood that the defendants considered their claim to be subject and secondary to plaintiffs’ claim, and that the proceeds, by whomsoever collected, would be divided according to such respective rights, a consent under such circumstances ought not to be a waiver of the wrongful taking.”

The plaintiffs had a verdict and judgment for the amount of their interest in the mortgaged property; and the defendants appeal from such judgment.

The action is for the unlawful conversion of the property-de*508scribed in tbe complaint. Before tbe adoption of tbe code, it would have been an action of trover. If tbe plaintiffs consented tbat tbe defendants should sbip and sell tbe bops, tben clearly there was no conversion of tbe bops by tbe defendants, and tbe action' of trover cannot be maintained therefor. Tbe circuit judge so instructed tbe jury, and instructed them correctly. But tbe qualification to tbat instruction above stated we think is erroneous. We are unable to perceive bow any misunderstanding between tbe parties as to their respective rights in tbe proceeds of tbe sale, or any misapprehension by tbe plaintiffs of tbe views of tbe defendants on tbat subject, not caused by tbe fraud of tbe defendants, can affect such consent or weaken tbe force of it. If tbe plaintiffs gave such consent, and if it was important to them to know, before doing so, what tbe views of tbe defendants were, as to which mortgage bad priority and as to which party was entitled to be first paid out of tbe proceeds of tbe sale, they should have ascertained ,before consenting to tbe sale, what those views were. And it cannot weaken or change tbe legal effect of such consent (tbe defendants being guilty of no fraud), if such consent was given without knowledge of tbe views of tbe defendants in tbat behalf, or under a misapprehension of those views. In either case it must be held tbat tbe consent of tbe plaintiffs to tbe sale, if given, operated as a waiver of tbe alleged tort; and in such case there could not have been a wrongful conversion of tbe bops.

It is very evident tbat this objectionable instruction may have misled tbe jury. Tbe jury may have found tbat tbe plaintiffs consented to tbe sale, and yet, under this instruction, if they also found tbat tbe plaintiffs gave such consent supposing tbat tbe defendants conceded tbe priority of their mortgage, tbe verdict must necessarily have been for tbe plaintiffs.

Tbe plaintiffs contend, however, that although they have failed to establish their right to recover in this form of action for tbe conversion of tbe property, they have proved their right to recover tbe proceeds of tbe sale thereof in an action for *509money bad and received, and that therefore the verdict and judgment should not be disturbed.

The rule on this subject is, that where the case has been tried on the merits and substantial justice done between the parties, the verdict will not be set aside upon a question of form only, or upon some merely technical objection to the form of the action. 3 Graham and Waterman on New Trials, chap. XIV, sec. IX, and cases cited.

We think that an application of this rule to the present case will not save this verdict and judgment. The distinction between an action for the wrongful conversion of property, and an action for money had and received, is not merely technical or formal, but is a substantial one. The former is an action *ex delicto,*the latter *ex contractu.*In the one, execution goes against the body, in the other, against the property only, of the defendant. The defendants in this action are liable to be imprisoned by virtue of an execution issued upon the judgment against them, while they would not be so liable were this an action for money had and received.

It is believed that no case can be found which attempts to ignore the existence of this vital distinction between those actions, or to deal with it as merely a formal or technical matter. Certainly the learned counsel for the plaintiffs has not referred us to such a case.

We find no other error in the instructions which were given to the jury by the circuit judge. But for the error aforesaid, we think there should be anew trial.

*By the Court.*— Judgment reversed, and a *venire de novo*awarded.