I join in what is said in the dissenting opinion of Mr. Justice Farthing. In addition I wish to express my dissent as to what is said in the majority opinion in reference to a right of recovery based on an action for money had and received. The majority opinion holds the receiver's right to maintain such action was dependent upon the power of the bank to ratify the transaction, and since it lacked such power, the receiver has no right to waive the tort and sue in assumpsit.
The action for money had and received is not based on the original transaction but is founded on a quasi contract. The park district converted the bank's securities into money and the law therefore raises an implied promise for it to pay that money to its owner. Such promise forms the basis for an action for money had and received, and is in no way related to the tort action which has been waived. Neither is it in any manner dependent upon the authority or lack of authority of the receiver or his bank to have ratified the original transaction. The receiver had a right of action for money had and received which was not barred by the Statute of Limitations. *Page 569