#### James A. Ingersoll v. Richard E. Moss.

Actions—Form of.

A tort can not be transformed into an implied promise to make reparation for the injury upon which an action of assumpsit will lie.

[Opinion filed March 4, 1892.]

Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.

Messrs. Ashcraft & Cordon, for appellant.

Mr. P. L. O’Meara, for appellee.

Cart, J.

The appellee bought from one Robert Clark some shares of stock in a corporation named the Superior Hail Company, and alleges that Clark and the appellant deceived him by false representations as to the value of the plant and the shares; on both of which subjects he had, so far as this record shows, all the opportunity for investiga*73tion that he desired. Whether upon, representations of value, under such circumstances, an action for deceit will lie, this case does not call upon us to decide. See Noetling v. Wright, 72 Ill. 390.

Without offering to return the stock, except by letter from his attorney, which required the appellant to do the walking, the appellee sued in assumpsit—the declaration containing only the common counts—both Clark and the appellant. Later he amended by adding a count in case for deceit, and later still amended that count by alleging that by reason of the deceit, they received the money to his use, and being indebted, promised to pay him. The promise relied upon is supposed to be implied by law from the circumstances.

There ivas a verdict and judgment against both Clark and Ingersoll, but this appeal is by the latter only. The price Avas §400; §100 AAmiit to pay a debt that Clark owed to an estate of Avhich the appellee Avas executor; §100 Avas a note to the company for a liability of Clark to the company; and $200 Avas a note to Clark. These notes the appellant collected for, and paid to, or for, the payees.

So the action remains a bald attempt to turn an alleged tort into a promise implied by law to make reparation, on Avhich assumpsit Avill lie. Where a Avrong-doer has con-ATerted into money the personal property of another, the oAvner may sue for the money had and received, but this is an exception to general rules that action for the redress of Avrongs must be ex delicto. Cooley on Torts, 107, 2d Ed.

There is no foundation for this action, but Ave decide nothing else.

Reversed mid remanded.