delivering the opinion of the court:
We are of opinion the jury would not be justified in implying a contract of sale, as a fact, from the evidence.
Can the plaintiff, where there is a tortious or wrongful taking or detention of personal property, which has not been sold by the tort-feasor, waive the tort and recover the fair value thereof, *515in an action of assumpsit upon a count for goods sold and delivered?
Hutton v. Wetherald, 5 Harr. 38, decided by the Superior Court of this state in 1848, following Jones v. Hoar, 5 Pick. (Mass.) 289, answered that question in the negative.
After a very careful consideration of the argument and briefs of counsel, we feel, however, that the great weight of authority is now to the contrary, and that the better rule is to allow recovery in such actions.
In Jester, et al. v. Knotts, ante, 57 Atl. 1094, the Superior Court, in stating what is universally held to be the law where the property wrongfully taken has been sold by taker, said:
“If one tortiously takes possession of property, and sells it, and thereby comes into possession of money belonging to another, the law will not permit him to deny an implied promise to pay the proceeds as money had and received to the use of the party entitled. The owner of the property thus taken and disposed of may either disaffirm the act, and treat the taker as a wrongdoer, and sue him for a trespass or for a conversion of the property, or he may waive the tort, affirm the act, and have an action like this for money had and received from the proceeds of the sale.
It would seem that every reason for allowing a recovery in assumpsit, upon a count for money had and received, of the amount for which the property was sold, will apply with equal force, to a case for the recovery of the fair value of the property, upon a count for goods sold and delivered, where the property is. not sold, but retained or consumed by the tort-feasor. 2 Street Foundations of Legal Liability, 216; 3 Street, 199; Keener, Quasi Cont. 192; 2 Page on Cont. § 843; 2 R. C. L. 756, 757; Woodruff v. Zaban, 17 Ann. Cas. 975 (note) 977; 1 Cooley on Torts, §§ 109-111; 1 Hilliard on Torts, 47; Putnam v. Wise, 1 Hill (N. Y.) 240 (note); Hill v. Parrott, 3 Taunton, 274; Bradfield v. Patterson, 106 Ala. 397, 17 South. 536; Roberts v. Evans, 43 Cal. 380; Fountain v. Sacramento, 1 Cal. App. 461, 82 Pac. 637; City of Elgin v. Joslyn, 136 Ill. 525, 26 N. E. 1090; Reynolds v. N. Y. Trust Co., 188 Fed. 611, 110 C. C. A. 409, 39 L. R. A. (N. S.) 309: Douns v. Finnegan, 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. 488; Crane v. Murray, 106 Mo. App. 697, 80 S. W. 280; Galvin v. Mac Mining & Milling Co., 14 Mont. 508, 37 Pac. 366; Abbott v. Blossom, 66 Barb. (N. Y.) *516353; Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803; Braithwaite v. Akin, 3 N. D. 365., 56 N. W. 135; Barker v. Cory, 15 Ohio, 9; Albrook v. Hathaway, 3 Sneed (Tenn.) 454; Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835, 115 Am St.. Rep. 864, 8 Ann. Cas. 736; Livingstone v. Lovgren, 27 Wash. 102, 67 Pac. 599; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782. ’
We are of opinion a new trial should be granted. It is ordered that the foregoing opinion and decision be and it is hereby certified to the Superior Court, Sussex County.
The opinion being so certified, the Superior Court awarded a new trial.