Alderson v. Ennor

Citations

• 45 Ill. 128

Syllabus

<p>1. Cause of action—contract and tort—money had and recei/oed. When mineral has been obtained by a trespass upon the lands of another, and con verted into money, the trespass may be waived, and an action of assumpsit brought for the proceeds.</p> <p>2. Same—for money had and received—when may be brought. An action for money had and received maybe maintained, whenever a party has obtained money from another, which in equity and good conscience he ought not to retain, or has sold the property of another and converted it into money.</p> <p>3. Instructions—not based upon evidence, may be refused. It is proper for the court to refuse an instruction which is not based upon any evidence introduced.</p> <p>4. Assumpsit—action of—when privity between parties. A and B were owners of adjoining mineral lands. C went upon the land of B, sunk a shaft, and drifted upon the land of A, and sold the mineral raised -from A’s land to B without retaining the royalty due to A. Held, that there was such privity between the parties as would create a liability, it being a custom among miners to sell the mineral raised by them, the buyer, if a smelter, retaining the royalty due to the owner of the land. C must, therefore, be considered the agent of A in the sale of the mineral to B.</p>