
    11106.
    Marietta Mining Company v. Armstrong.
   Broyles, C. J.

1. Under repeated rulings of this court an assignment, of error upon the refusal of the court to award a nonsuit will hot be considered where the case proceeded to a verdict, and the defendant excepted to the overruling of the motion for a new trial, which included the ground that the verdict in favor of the plaintiff was contrary to the evidence and without evidence to support it.

2. “Where one wrongfully takes the personal property of another and converts the same to his own use in some other manner than by a sale, and does not receive any money therefor, the owner has a right of action ex delicto against such wrongdoer, and is restricted to this form of action. In such a case the tort can not be waived and an action ex contractu be brought, for the reason that, until the wrongdoer has received money to which the owner of the property is entitled, there can be no action for money had and received or upon an implied promise to pay money. Spencer v. Hewitt, 20 Ga. 426; Barlow v. Statworth, 27 Ga. 517. See also Reynolds v. Padgett, 94 Ga. 347 (21 S. E. 570); 40 Am. Law Reg. N. S. 50 et seq.” Cragg v. Arendale, 113 Ga. 181 (4) (38 S. E. 399). See also Woodruff v. Zaban, 133 Ga. 24 (65 S. E. 123, 134 Am. St. R. 186, 17 Ann. Cas. 974), and Southern Ry. Co. v. Roberson, 136 Ga. 146 (71 S. E. 129).

(a) The instant case was “an action of debt upon account,” and when the above principle of law is applied to its facts the verdict in favor of the plaintiff was contrary to law and the evidence, and the court erred in refusing to grant a new trial.

Decided March 3, 1920.

Appeal; from Cobb sujierior court — Judge Morris. October 6, 1919.

J. Z. Foster, for plaintiff in error.

H. B. Moss, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.  