Page:North Dakota Reports (vol. 3).pdf/410

 laid down in many of the cases. The doctrine that the injured party may waive the tort and sue in assumpsit is limited by these decisions to cases where the wrongdoer has sold the property, and received therefor money or money's worth. Jones v. Hoar, 5 Pick. 290; Mhoon v. Greenfield, 52 Miss. 434; Willet v. Willet, 3 Watts, 277; Stearns v. Dillingham, 22 Vt. 624; Watson v. Stever, 25 Mich. 387; Balch v Pattee, 45 Me. 41; Kidney v. Persons, 41 Vt. 386; 1 Am. & Eng. Enc. Law, 888; cases in note to Webster v. Drinkwater, 17 Am. Dec. 242; Tuttle v. Campbell, 74 Mich. 652, 42 N. W. Rep. 384; Moses v. Arnold, 43 Iowa, 187. There is no allegation in the answer that the interveners ever sold the steamboat, or in any manner received money or money’s worth for her. But we are of opinion that this limitation of the doctrine that the tort may be waived is without foundation in reason or principle. The whole doctrine is built upon a fiction. It asserts that what was done in defiance of the owner's rights was in law done with the most perfect regard for his rights; that the wrongdoer has received the money for the owner, or that he has bought the property from the owner at its fair value. This fiction is indulged only in the interests of the owner, and it rests upon the receipt by the wrongdoer of benefits accruing to him from his wrongful acts. Where no benefits are received, the liability is only for the wrong. As this right in the injured party to turn the tort liability into a contract liability stands upon the receipt of benefits by the wrongdoer, is it not beneath the dignity of any tribunal to draw a distinction between the receipt of benefits in the shape of cash and the receipts of benefits in the form of property? In our judgment, the fact that a sale has not been made is unimportant. Not only upon sound principle, but also upon the foundation of strong authority, do we establish the rule in this state that the owner of property converted may waive the tort and sue in assumpsit for the benefits received whenever the tort feasor receives benefits of any kind from the wrong committed, whether by sale or by retention of the converted property, or in any other manner. Norden v. Jones, 33 Wis. 600-604; Hill v. Davis, 3 N. H. 384; Stockett v.