Lubert

The opinion of the court was delivered by

Heydenfeldt, Justice, concurring.

The first assignment of error is, that the evidence does not support the contract as laid in the complaint, and therefore, that the court erred in refusing to order a nonsuit.

The plaintiff in the court below waived the tort (if any had been committed), and brought his action against the defendants as' factors, to account for goods sold by them, and to restore the amount of the net proceeds arising from the sale. This he had a right to do, according to well-established principles of the common law, and it was competent for him to introduce evidence showing the manner in which the defendants became possessed of " the goods ; and although the proof should establish the fact that the defendants became possessed of them wrongfully, it would still be sufficient to maintain an action against the defendants as consignees or factors for the net proceeds.

One of the objects sought by the reformation in the forms of *463 pleading was to provide for cases like the present. The distinctions in the form of actions ex delicto and ex contractu are abolished, and one form of action only substituted, and the plaintiff…