Lehmann

The authorities are clear upon the proposition that when one person converts to his own use the personal property of another, the latter may waive the tort, and sue in assumpsit for the value thereof. (Pratt v. Clark, 12 Cal. 89 ; Roberts v. Evans, 43 Cal. 380 ; Berly v. Taylor, 5 Hill, 577 ; 2 Greenl. Ev., sec. 108.) But it is contended by appellant that the defendant had a lien on the wine for money paid out and advanced, and that his refusal to comply with the plaintiff's demand did not constitute a conversion. The court found, however, that the defendant advanced on account of said wines, under the agreement, the sum of $678.50, and no more, and that he incurred no other liabilities on account of the wine under the agreement; and the answer of the defendant admits that he had received, “as the *21 proceeds of the sale of a portion of said wines mentioned in plaintiff’s complaint,” the sum of $1,124.16. Thus it appears, from the findings, evidence, and admissions of defendant, that he had received more than he had advanced and expended. But if this were not so, the defendant waived his lien, if any he had, for moneys advanced or expenses incurred on account of the wine, by…