The authorities are clear upon the proposition that when one person converts to his own use the personal property of another, the latter may waive the tort, and sue in assumpsit for the value thereof. (Pratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 380; Berly v. Taylor, 5 Hill, 577; 2 Greenl. Ev., sec. 108.) But it is contended by appellant that the defendant had a lien on the wine for money paid out and advanced, and that his refusal to comply with the plaintiff's demand did not constitute a conversion. The court found, however, that the defendant advanced on account of said wines, under the agreement, the sum of $678.50, and no more, and that he incurred no other liabilities on account of the wine under the agreement; and the answer of the defendant admits that he had received, “as the *21proceeds of the sale of a portion of said wines mentioned in plaintiff’s complaint,” the sum of $1,124.16. Thus it appears, from the findings, evidence, and admissions of defendant, that he had received more than he had advanced and expended. But if this were not so, the defendant waived his lien, if any he had, for moneys advanced or expenses incurred on account of the wine, by repudiating the contract, refusing to deliver the wine, and by declining to account to Smith for the amount received or expended. It has been held in England that a person having a lien on goods does not waive it by the mere fact of his omission to state that he claims them in that right when they are demanded; but if a different ground of retention than that of the lien be assumed, the lien ceases to exist. In this country the weight of authority seems to support the contention that if the bailee refuse, upon demand, to deliver the property without setting up any lien thereon, he waives his right to claim a lien after suit brought. (Hanna v. Phelps, 7 Ind. 24; Everett v. Saultz, 15 Wend. 478.) In the case at bar, it is true, the defendant was not merely a bailee for service; he was also a factor to sell; but he not only failed to assert a lien on the wine for advances and expenses at the time a demand was made upon him, but he notified Smith “ that he would not have anything more to do with the contract,” refused to go on with the sale of the wine or have anything further to do with it, and refused to deliver possession of the wine or make any accounting in relation thereto. He stated to one of the witnesses that he could not tell anything about the wine, as “it was so mixed up with his own wine that he could not make a statement of it.” Upon this evidence the court was justified in finding that there was a conversion of the property, and that defendant waived his lien, if any he had. (Civ. Code, sec. 29; McPherson v. Neuffer, 11 Rich. 267; Ramsby v. Beezley, 11 Or. 49; Overton on Liens, sec. 115, p. 142.)
*22We do not think that the defendant is entitled to any allowance for the 230 gallons of sediment, or for the money expended for freight, labor, and materials. He knew when he took the wine that there would be some sediment and waste in curing it, and it was stipulated in the agreement that plaintiff was to receive twenty cents per gallon, net. He agreed to furnish the necessary labor and outlay for freight, labor, etc., in shipping and curing the wine. It is admitted that he received the 7,981 gallons of wine with which the court charged him, and having converted it all to his own use, any expense or loss incurred in getting possession of that quantity or in improving its quality must be borne by himself.
The finding of the court as to the value of the wines is supported by the evidence. Mr. Smith testified that if the defendant had sold the wine at once “ he could have realized a great deal more than twenty cents per gallon, for wines were very high at that season; but his neglect and delay caused me a great loss.” Furthermore, it was stipulated in the contract, as stated above, that plaintiff should receive twenty cents per gallon, net; and, under these circumstances, having converted it to his own use, we think the price stipulated in the argeement is some evidence of the value of the property at the time of the conversion.
The point was made that the assignment to the plaintiff did not entitle him to maintain this action, but we think it is sufficient to support an action for the value, although it be for only a portion of the wines referred to in the agreement. The rule against the splitting up of the cause of action (Zirker v. Hughes, 77 Cal. 235) is inapplicable to this case.
The findings of the court are supported by the evidence, with the exception of the fourth finding, which states that defendant incurred no other liabilities and made no other advances than the $678.50 cash advanced to Smith. The latter testified that he received from the *23defendant the sum of $678.50 in cash, and some casks that he had ordered from the defendant. The defendant testified that the casks referred to were furnished at the request of Smith, and were worth the sum of $39.55, including drayage, which amount was charged to Smith as an advance under the contract. It is clear, therefore, that the defendant should have been allowed that amount as an offset, in addition to the $678.50.
The cause is remanded, with directions to the court below to modify the judgment, by inserting therein nine hundred and twelve dollars and ninety-five cents, instead of the words and figures “ nine hundred and fifty-two and fifty hundredths ($952 50-100) dollars.” As so modified, the judgment will stand; but the respondent will be taxed with the costs of this appeal.
Beatty, C. J., McFarland, J., Fox, J., Sharpstein, J., and Thornton, J., concurred.