I.’
Hall, «T.Under the facts hypothetically stated in the first instruction given for the plaintiff, and the first instruction given by the court of its own motion, to prove which the evidence tended, the defendant was the bailee of plaintiff in the latter’s individukl, and not in his representative, capacity. The instructions suppose an agreement by which the jack became the property of plaintiff, and by which the defendant was to keep the *241jack as plaintiff’s property. Under the instructions, the jury could not have found for plaintiff without finding such agreement. If the defendant had possession of the jack as the plaintiff’s bailee, and converted the same to his own use, under the facts of this case, he was liable therefor to the plaintiff; whether the latter was the owner of the jack in fact or not. As between the plaintiff and defendant, the jack was the plaintiff’s. The rule is, “A bailee cannot avail himself of the title of a third person (though the person be the true owner) for the purpose of keeping the property for himself; nor in any case where he has not yielded to the paramount title.” The Idaho case, 93 U. S. 575; Pullham v. Burlingame, 81 Mo. 119; Cole v. Railroad, 21 Mo. App. 449. In this case no third person had set up any claim to the jack, and the defendant could not avail himself of the title of the real owner, for the purpose of keeping the jack for himself, no matter where the real title belonged, in the estate of which the plaintiff was the administrator, or elsewhere. The rule is not based upon the honest, though mistaken, belief of the bailor in his title, but is founded upon the relation existing between the bailor and bailee ; and “the position of the bailee is precisely the same, whether his bailor was honestly mistaken as to the rights of the third person whose title is set up, or fraudulently acting in derogation of them.” The Idaho case, supra.
II.
This was not an action for conversion, but was an action in assumpsit for money had and received. The defendant had converted the plaintiff’s jack to his own use by selling the same, and had received the proceeds of the sale in money. The plaintiff waived the tort and brought this suit in assicmpsit for the money thus received by the defendant with interest from the date of the sale. The value of the jack was, therefore, irrelevant, and evidence thereof was incompetent. For the *242same reason, the instruction given as to the measure of the damages was erroneous. But, since the jury, as their verdict, returned the amount received by the defendant from such sale, with interest at six per cent, per fl.nmrm from the date of the sale, the error was immaterial in its results, if, in so doing, the jury acted in accordance with the correct rule as to the measure of damages. The question is, therefore, was said sum with interest from said date the correct measure of plaintiff’s damages ?
The plaintiff’s right to waive the tort and sue in assumpsit for the proceeds of the sale was authorized by an implied promise, raised by law, on the part of the defendant, that he would pay the money to the plaintiff.- This right of election on the part of the plaintiff rests upon the fiction imposed at his pleasure upon the misconduct of the defendant. By electing to waive the tort, the plaintiff became entitled to the proceeds of the sale, but up to that time he was not entitled to such proceeds. • The right to the proceeds accrued by force, and 'at the moment, of the election, and not before. As the plaintiff was not entitled to the proceeds of the sale until he made the election, as a matter of course he was •not entitled to interest thereon prior thereto. This conclusion is not in conflict with section 2723, Revised Statutes, which provides that “ Creditors shall be allowed to receive interest at the rate of six per cent, per ann am x x x for money recovered for the use of another, and retained without the owner’s knowledge of the receipt.” This statute has to do with a case where money is in fact recovered for the use of another, and has nothing to do with a case like this, where the gravamen of the transaction sounds in tort and there is no debt in fact, but only by fiction of law. That fiction will not be so indulged as “to bring a case within the terms of the statute which otherwise would not include it.” Finley v. Bryson, 84 Mo. 670. In this case there was no election until suit was brought. Hence the plaintiff had no right to interest until then. The institution of the *243suit was a sufficient demand. Under our statute, the failure of a prior demand is not available to a party unless it is expressly set up by way of defence, etc., ac^ companied with a tender of the amount due. Rev? Stat., sec. 1018. Interest began to run from the institution of suit.
III.
For the error indicated the judgment would have to be reversed and the case remanded for a new trial, were it not for a remittitur offered by the plaintiff. In view of the possibility that we should entertain the opinion as to the measure of damages expressed by us, the plaintiff, by his counsel, has offered to enter a remittikir in-the sum of $18.06|-, to take effect on January 5, 1887, the date of the judgment, which reduces the judgment to the sum of $243.10, two hundred dollars principal, and interest thereon at six per cent, per annum from June 2, 1883, the date of the institution of the suit, to the date of the judgment. This is the sum for which the judgment should have been rendered in the first place, and the remittitur will be allowed. The costs of this appeal are, however, adjudged against the plaintiff, and judgment will be entered here accordingly.
The judgment of the circuit court is reversed and the cause remanded, with directions to said court to enter judgment as of January 5, 1887, in favor of plaintiff for the sum of $243.10.
All concur.