
    Spoor v. Newell.
    S., by a parol agreement, promised to sell N. a horse, the latter to convey to S. a piece of land in part payment. The horse was afterwards delivered pursuant to the agreement; and N. tendered a deed of the land which S. refused to accept. Held, that though the agreement was void so that S. might reclaim the horse, no action for his value lay against N. until after a demand and refusal. Semite, that in all cases of a wrongful conversion of personal property, the owner may waive the tort and recover the value in an action for goods sold and delivered ; but he cannot, by electing the latter form of action, evade the rule requiring such proof of a conversion as wuold have been necessary had he sued directly for the tort.
    Motion to set aside report of referee. The action was assumpsit, and the declaration contained the general counts for goods sold and delivered. Plea, non assumpsit and notice of set-off. On the hearing before the referee, the case was this : The parties entered into an oral contract by which the plaintiff agreed to sell the defendant a horse, in consideration of which the defendant was to convey to the plaintiff a piece of land in part payment. The horse was accordingly delivered to the defendant, and sometime afterwards he tendered a deed of the land which the plaintiff refused to accept, saying that the defendant had delayed the fulfilment of the contract on his part so long, that the deed could be of no use to him. This action was then instituted to recover the value of the horse. There was no proof that the horse had been demanded by the plaintiff before suit brought; and the referee reported in favor of the defendant. The plaintiff now moved to set aside the report.
    
      A. J. Parker, for the plaintiff.
    
      L Monson, for the defendant.
   By the Court, Cowen, J.

This contract was clearly void ; the plaintiff was under no legal obligation to perform on his part, and was entitled to have the horse returned. He had, however, voluntarily delivered the horse to the defendant 5 and, before bringing an action, was bound to make a demand. The acceptance of the horse was not a conversion. It was a lawful, not a wrongful taking; and trespass would not lie. The proper action, in form ex delicto, for the value, must have been trover founded on a conversion. No actual conversion being shown, a demand and refusal would have been necessary.

In all cases of a wrongful conversion of personal property, • actual or constructive, I admit the plaintiff may waive the tort and recover the value in an action for goods sold and delivered ; but he cannot, by changing the form of action, evade the rule requiring such proof of a conversion as would be necessary in any other form of action for the value. Actions ex delicto and ex contractu in such cases are concurrent; but the proof must be the same in each.

In the case before us, no conversion of the horse was proved to the satisfaction of the referee; and the motion to set aside the report must therefore be denied.

Ordered accordingly. 
      
       See Cummings v. Vorce, (ante p. 282.) See Putman v. Wise, (1 Hill, 240 and note (a);) The State of New.York v. The City of Buffalo, (2 id. 434.)
     