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Generally, what is a tort in its inception can not by any subsequent transaction be made the foundation of an implied assumpsit.
Pursuant to the Act of 1861, the franchisee improved the Carson River by the construction of chutes, aprons, and booms and the removal of obstructions. Thus, under the Act, the franchisee was entitled to the exclusive use of the river for a period of five years. During said period the organizers floated wood down the river and used the franchisee's improvements. The franchisee filed an action of assumpsit to recover a sum of money for such use. The trial court charged the jury that the use of the river and improvements raised an implied promise to pay what such use was reasonably worth. The jury returned a verdict for the franchisee. Defendant organizers sought review of the decision.
Under the circumstances, could the franchisee recover upon an implied assumpsit?
On appeal, the court noted that, generally, what was a tort in its inception could not by any subsequent transaction be made the foundation of an implied assumpsit. To show that the organizers made use of the river and the franchisee's improvements without permission was showing a trespass out of which no implied promise could arise. However, the trial court's instruction assumed that the law would raise an implied promise from the organizers' actions. The instruction was incorrect, and the presumption was that it misled the jury.