Page:North Dakota Reports (vol. 48).pdf/537

 conclusion we do not find it necessary to determine whether there was or was not a contract of purchase. As already indicated, the sole question raised on the motion for a new trial and on this appeal—aside from the one relating to the motion to strike evidence alluded to above—is that the evidence is insufficient to sustain the verdict. There was no motion for a new trial on the ground that the verdict was contrary to law.

It will be noted that the complaint does not allege that there was any agreement to purchase at a stated price. The amount sought to be recovered is the reasonable value of the wheat. The averments of the complaint are precisely those which would be set forth in a complaint where the defendant had converted the property and the plaintiff elected to waive the tort and sue on the promise which the law implies the defendant to have made. See Pomeroy’s Code Remedies, §§ 568-573; 4 Cyc. 339-344; 3 Standard Ency. Proc. 215.

“A declaration in assumpsit on waiving a tort need not allege the tort or the waiving thereof.” 4 Cyc. 344.

The right of an owner to waive the tort and sue in assumpsit for the value of personal property tortiously taken and converted into money or money’s worth is recognized by all the authorities. See 4 Cyc. 332. And in this state the owner may recover where the wrongdoer has not sold or otherwise disposed of the property, but retains it for his own use. Braithwaite v. Akin, 2 N. D. 365, 56 N. W. 133. See, also, 4 Cyc. 334.

The judgment and order appealed from are affirmed.

, and, JJ., concur.

, C. J., concurs in the result.

W. L. GARDNER, J. J. MURPHY, Respondents, v. T. L. STANGEBYE, et al, Appellants.

Assignments—assignee of obligation to pay rent held entitled to sue thereon.

This is an action by the assignee of a lease and bond for the payment of rent and there is no claim that the judgment is for more than the sum