Sec 734

We have already seen that no title to goods passes when only a bare charge is given to the transferree, and that no title passes by goods obtained by false personation.6 It may be added that with the single exception in England of sales in market overt, goods can, if no title be transferred, be followed into the hands even of parties without notice; or, in case of their sale by such parties, their price may be recovered by the owner.7 In this country, the exception of market overt does not exist.8 Negotiable paper, taken bona fide before maturity, does not fall within this rule.9 And ordinarily a person not taking he has resold them.1 Hence, where a power of attorney to sell stock was forged by one of a partnership, and the proceeds paid to the account of the partnership, it was held that the owner of the stock might recover the proceeds from the partnership as money had and received to his use.2 An auctioneer, also, who innocently and ignorantly buys and sells stolen goods, is liable to the rightful owner in trover without a previous demand.3 A party, also, knowingly receiving partnership funds from a partner, is liable in money had and received to the firm.4 But a suit of this kind does not lie to recover the value of goods taken under a claim of right, when there has been no conversion.5 Nor can real actions be tried in this way.6

Such money cannot be pursued into hands of strangers.

Goods fraudulently obtained may be followed into other hands.

1 Leake, 2d ed. 91; Bigelow on Fraud, 308; Foster V. Green, 7 H. & N. 881; Hoffman V. Noble, 6 Met. 68; Ball V. Shell, 21 Wend. 222; Thompson V. Lee, 3 W. & S. 479; Thorpe V. Beavans, 73 N. C. 241.

2 Ibid.; Atlee V. Backhouse, 3 M. & W. 633; Calland V. Loyd, 6 M. & W. 26; Pickett V. Barron, 29 Barb. 505; Blanchard V. Tyler, 12 Mich. 339.

3 Supra, sec 292; Moody V. Blake, 117 Mass. 23; and cases cited in next section.

4 Easter V. Allen, 8 Allen, 7; Hoffman V. Strohecker, 9 Watts, 183. As to title of bona fide purchasers, see supra, sec 211, 291, 347, 352. 376. That persons without title cannot pass title, see supra, sec 292.

5 Tappan V. Bank, 127 Mass. 107.

6 Supra, sec 182-3, 292.

7 Bigelow on Fraud, 308; Glyn V. Baker, 13 East, 509; Kinder V. Shaw, 2 Mass. 398; Towne V. Collins, 14 Mass. 500; Williams V. Merle, 11 Wend. 80; see supra, sec 183; Benj. on Sales, 3d Am. ed. sec 7, 433.

8 Ventress V. Smith, 10 Pet. 176; Dame V. Baldwin, 8 Mass. 518; Easton V. Worthington, 5 S. & R. 130; Roland V. Gundy, 5 Ohio, 202.

9 Leake, 2d ed. 95; supra, sec 539.

title cannot pass title, even to a bona fide purchaser for value.1 - The process for recovery of a chattel under such circumstances must be in rem. It cannot be for money had and received.2 sec 735. As is the case with election to rescind,3 an election to waive the tort, in cases of this class, and sue on the contract, when once made, is final.4 The election is evidenced by bringing a suit for the proceeds.5 "The law is clear that a person who is entitled to complain of a conversion of his property, but who prefers to waive the tort, may do so, and bring his action for money had and received for the proceeds of goods wrongfully sold. The law implies, under such circumstances, a promise on the part of the tort-feasor that he will pay over the proceeds of the sale to the rightful owner. But if an action for money had and received is so brought, that is in point of law a conclusive election to waive the tort; and so the commencement of an action of trespass or trover is a conclusive election the other way."6 Part reception of the proceeds, also, is a waiver of the tort; and the only remedy for the recovery of the residue is an action for money had and received.7