#### T. W. WHITE v. THOMAS ELEY.

(Filed 11 September, 1907).

1. Jurisdiction — Torts—Contract—Wrongful Conversion — Election.

When the plaintiff can bring his action either in tort, for wrongful conversion, or upon contract, the courts, in favor of jurisdiction, will sustain the election of the plaintiff.

Civil ACTION, tried before Lyon, J., and a jury, Spring Term, 1907, of the Superior Court of Beetie County.

Winsion & Mathews for plaintiff.

St. Leon Scull for defendant.

Claek, C. J.

The complaint alleges that plaintiff placed with the defendant a horse to sell for him; that the defendant received for the horse the sum of $149, which he has converted to his own use, and asks for recovery of the sum so converted, and for arrest and bail of defendant. The defendant demurred ore tenus that the Superior Court had no original jurisdiction because this is an action on contract. The Court sustained the demurrer and dismissed the action.

There is error. “When the action can be fairly treated as based either on contract or in tort, the courts, in favor of jurisdiction, will sustain the election made by the plaintiff.” Brittain v. Payne, 118 N. C., 989; Schulhofer v. Railroad, ibid., 1096. The plaintiff could sue either for the tort, the unlawful conversion, or on the contract. Bringing the action in one court, when he might have brought it in the other, is prima facie such election. Sams v. Price, 119 N. C., 574; Parker v. Express Co., 132 N. C., 130.

In such cases the plaintiff may waive the tort and sue in contract. Bullinger v. Marshall, 70 N. C., 520; McDonald v. Cannon, 82 N. C., 245; Wall v. Williams, 91 N. C., 477; Edwards v. Cowper, 99 N. C., 421; Timber Co. v. Brooks, 109 N. C., 698.

*37Or be may elect to sue for tbe tort. Bowers v. Railroad, 107 N. C., 721; Purcell v. Railroad, 108 N. C., 424; Thompson v. Express Co., 144 N. C., 389. In Frelich v. Express Co., 67 N. C., 1, it was beld tbat tbe complaint sbowed tbat tbe plaintiff bad elected to sue on tbe contract for a sum less than $200, notwithstanding tbe action bad been brought in tbe Superior Oourt.

Tbe judgment dismissing tbe action is

Reversed.