Restitution - Waiver of Tort and Suit in Assumpsit - Amount of Recovery Where There Has Been a Sale

In a prior action one of the defendants obtained a judgment against the plaintiff. The present action for conversion was brought because of an allegedly irregular execution sale of plaintiff's business property under that judgment. The trial court granted defendants' motion to dismiss on the ground that the action was barred by the statute of limitations. On appeal, held, affirmed.

The applicable statute of limitations was not tolled by fraudulent concealment and plaintiff, having elected his remedy in tort, was not entitled to a trial in an action of assumpsit on the theory of a contract implied by law. The court also found that under the Judicature Act of 1915 any assumpsit recovery would be limited to the proceeds of the sale. One justice dissented from this view on the ground that the assumpsit action provided for in the act did not eliminate assumpsit on the common counts as a restitutionary remedy, and that recovery on such counts should not be limited to the proceeds of a sale by the wrongdoer. Janiszewski v. Behrmann, 345 Mich.

8, 75 N.W. (2d) 77 (1956).