Art. 3. Jurisdiction. insurance company, which had paid to the insured the loss covered by its policy to recover for the burning of a barn (the building insured) in the State of Pennsylvania, through defendant's negligence, was triable in this State, citing Barney v. Burstenbinder, 7 Lans. 210; Gardner v. Ogden, 22 N. Y. 327. This case does not appear to be subsequently cited upon this point. American Union Telegraph Co. v. Middleton, 80 N. Y. 408 (1880), laid down the rule, "The cases in which an action will lie for an injury in another State or country, to the person or property, are personal and transitory actions which do not relate to the realty, and have no application to an action of trespass quare clausum fregit, where the place of trial must be confined to the locality, as is the case here. In cases of this character no action will lie outside of the jurisdiction of the State or country where the cause of action arose. This was followed by Cragin v. Lovell, 88 N. Y. 258, holding that (p. 263) it is a general rule of law that actions for injuries to real property must be brought in the forum rei site, and this rule of law has been uniformly sanctioned and upheld in this State. Dodge v. Colby, 108 N. Y. 445 (451), on the authority of 80 N. Y. 408, and 88 N. Y. 258, supra, states that the rule that courts in this State have no jurisdiction of actions for trespass upon lands situated in other States is too well settled to admit of discussion or dispute. Barrett v. Palmer, 135 N. Y. 339, upon the authorities above referred to, states the rule to be: "There can be no doubt that an action of trespass quare clausum fregit was local in its character, and the courts have no jurisdiction when such trespass is committed upon lands in another State." Sentenis v. Ladew, 140 N. Y. 463, states, "While, as a general rule, an action for injuries to real estate must be brought in the forum rei sitæ, the Supreme Court of this State is not prohibited from entertaining an action to recover damages for injuries to real property in another State; and where it acquires jurisdiction of the parties and defendant appears, answers and goes to trial without objecting to the authority of the court to hear the cause, the judgment rendered therein will be neither void nor voidable. for want of jurisdiction, but will be binding and conclusive upon the parties." Art. 4. Waiver of Tort and Effect of Election of Remedies. All of these authorities are collated and considered in Sprague Nat. Bank v. Erie R. R. Co., 40 App. Div. 69, 57 N. Y. Supp. 844. It is held in Ruckman v. Green, 9 Hun, 225, that an action may be maintained in this State for an injury to land situated herein, though the business which occasions the injury and constitutes the nuisance complained of is carried on upon land situated in the State of New Jersey. ARTICLE IV. WAIVER OF TORT AND EFFECT OF ELECTION OF REMEDIES. In some cases injury sustained by a party from the acts or omissions of another do not only give right of action, but also a right to elect between two or more forms of action, by either of which he may obtain some measure of redress. He may have a right of election between legal and equitable remedies or between an action in tort and an action on contract. 8 Wait's Actions and Defenses, 4. "The line of demarcation between contracts and torts is not perfectly defined. Many torts arise out of a state of facts which constitute also a breach of contract, and in that event the injured party may elect to bring his action either ex contractu or ex delicto. Again, there are cases in which a tort may be so committed as to give rise to an implied contract; as where one wrongfully disposes of the property of another and receives the consideration therefor. In such cases the injured party may waive the tort, and sue on the contract for the consideration received by the wrongdoer." 26 Am. & Eng. Encyc. of Law (1st ed.), 73. If the contract contain a false warranty, it is broken in the breach of the warranty, and breach of an affirmative warranty, fraudulently made, may be treated as a tort. So, too, what is of much importance, a contract founded upon a false and fraudulent Art. 4. Waiver of Tort and Effect of Election of Remedies. representation, though not amounting to a warranty, may be repudiated, and an action for tort maintained; or the contract may be treated by the injured party as binding, and an action for tort brought to recover damages for the loss caused by getting him into the contract. Bigelow on Torts, p. 26. This rule seems to have been laid down in Lamine v. Dorrell, 2 Ld. Raym. 1216, cited in Keener, 170, where Powell, J., said: "When the act that is done is in its nature tortious, it is hard to turn that into a contract, and against the reasons of assumpsit. But the plaintiff may dispense with the wrong, and suppose the sale made by his consent, and bring an action for the money they were sold for, as for money received to his use." In Hale, 20, it is said that perhaps the most singular anomaly in the law is to be found in the holding that an action on contract will lie for a tort pure and simple. Illustrating the statement by the proposition that if a man steals goods of another, the latter may waive the tort and sue on contract, although no contract exists. So, also, if goods have been sold not by mistake, but through fraudulent misrepresentation, the seller may sue in tort, because of the deceit, or on contract for the value of the goods. Citing Hill v. Perrott, 3 Taunt. 274; Young v. Marshall, 8 Bing. 43; Hawk v. Thorn, 54 Barb. 164. The latter case holds that when a person has unlawfully taken possession of another's property, the tort may be waived and an action brought for its value, and further that such a cause of action is assignable. When a conversion consists of a wrongful sale of goods the owner of them may waive the tort and sue by a count for money had and received for the price which the defendant obtained for them. Moak's Underhill on Torts, 607, citing Lamine v. Dorrell, 2 Ld. Raym. 1216; Oughton v. Seppings, 1 B. & Ad. 241. Bishop, 8 73, lays down the rule that in a certain class of cases the party injured by the nonfulfillment of a duty may proceed against the other for its breach, or for the breach of the contract out of which the nonfulfillment arose, at his election. Citing Church v. Mumford, 11 Johns. 479; Rawson v. Dole, 2 Johns. 454, the latter case in its turn citing Bonafous v. Walker, 2 T. R. 126. It is well settled that in a variety of cases a plaintiff may waive the tort and sue in contract, and vice versa. He has an election of Art. 4. Waiver of Tort and Effect of Election of Remedies. action. It was said in the old practice that case and assumpsit were oftentimes concurrent remedies. Govett v. Radnidge, 3 East, 70, cited in Butts v. Collins, 13 Wend. 138 (154), citing numer ous other authorities, and holding the rule that where a defendant has been guilty of a tortious neglect of duty, the plaintiff may waive the tort and rely upon the circumstances as forming a breach of promise implied from some consideration of reward. Erwin on Torts (p. 14): "The general result of all the decisions is well stated in a note to Cabell v. Vaughan, 1 Wms. Saund. (5th ed.) 291, and is in substance this: Where the action is maintainable for the tort simply, without reference to any contract made between the parties, no objection can be raised on the ground that the plaintiff should have declared upon the contract, as for instance, in actions against common carriers, founded on the custom of the realm, and the like. But where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, there the plaintiff must proceed upon the contract, and a special action on the case will not lie." In People v. Gibbs, 9 Wend. 30 (33), Savage, Ch. J., quotes Lord Mansfield as laying down the general rule which has ever since been considered correct, bearing upon the right to waive a tort and sue upon contract. "If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, as beating or imprisoning a man, then the person injured has only a reparation for the delictum in damages to be assessed by a jury; but where, besides the crime, property is acquired, which benefits the testator, then an action for the value of the property shall survive against the executor, as for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees, but for the benefit arising to his testator for the value or sale of the trees, he shall." Where a wrongdoer sells property illegally taken, the owner may waive the tort and sue for money had and received, and where the property taken is money it may be recovered in such an action without waiting for the formality of a sale. Tryon v. Baker, 7 Lans. 511, citing Harpending v. Shoemaker, 37 Barb. 270. Harway v. Mayor, 1 Hun, 628, cites Chambers v. Lewis, 2 Hilt. 591; Putnam v. Wise, 1 Hill, 235, 240, note; Neale v. Hard Art. 4. Waiver of Tort and Effect of Election of Remedies. ing, 6 Exch. 349, holding it is a well-settled law that "if one has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, such money is, in contemplation of law, money received for the use of the injured party; it is not the money of the wrongdoer, and he has no right to retain it, and the law, therefore, implies a promise from him, to return it to the rightful owner, whose title to it cannot be destroyed and annulled by the fraudulent and unjust dispossession. The tort may be waived, and an action brought for the recovery of the money, upon implied contract. The defrauded party in such case has a choice of remedies. He may pursue the person guilty of the fraud in an action of tort for damages sustained by the injury, or waiving that remedy, he may treat the matter as simple debt. and proceed upon the implied contract to repay the money." * * * "The general classification being made of the actions ex contractu and those ex delicto, there were many cases in which a party who had suffered a wrong by the conversion or the taking and carrying away of his chattels might waive the tort, and bring an action of assumpsit upon the wrongdoer's implied promise to pay the price of the articles taken. The same election still exists. Wherever the plaintiff who could sue in 'trespass' or 'trover' might, if he chose, bring assumpsit,' he may now waive the tort, and maintain an action upon an implied promise and recover the price of the goods, as though there had been a sale. This choice, however, does not relate to the external form of an action; it relates to the very cause of action itself, to the unchangeable rights which are to be protected and enforced by the judicial proceeding. In one instance, the plaintiff is permitted to view the transaction. as an injury to his property, by which he has sustained damages which amount to the entire value of that property. In the other, he views the transaction as a sale, by which the title to the property has passed to the defendant, and a duty to pay the price rests upon him. For reasons of public policy, the law allows the injured party to make his choice between these two quite different versions of the same transaction; and, although one of them may be a fictitious view, substantial justice is done thereby.' Pomeroy's Code Remedies, p. 140, citing Conaughty v. Nichols, 42 N. Y. 83; Ross v. Mather, 51 N. Y. 108; Ledwich v. McKim, 53 N. Y. 307 (316); Graves v. Waite, 59 N. Y. 156; Matthews v. Cady, 61 N. Y. 651; Greentree v. Rosenstock, 61 N. Y. 583, 588-590; Nef |