The question raised by those exceptions has already been determined by the opinions given when this case was before the court at a former term. 3 Gray, 108. The defendants have earned no freight, and cannot set off any claim therefor against the sum which they owe the plaintiff for the *217proceeds of his property which was sold by them at San Francisco.

The attempt to make the plaintiff liable, by way of set-off, for a debt which he does not owe, because he seeks under a count for money had and received to recover the proceeds of his property, instead of by a count in tort, in the nature of trover, to obtain damages for its conversion, is quite novel, and cannot bo supported on principle or authority. The form of action does not change the substantial rights of the parties. Its only effect is to limit the claim of the plaintiff to the net amount of money received by the defendants for the sale of the goods, instead of leaving it open to him to recover their actual value at the time of the conversion, although much greater than the sum received for them by the defendants. In this respect, the form of action in the present case is most beneficial to the defendants ; in all others, the rights of the parties are not affected by it. When, therefore, it is said that the plaintiff by his form of action has ratified the sale of the goods by the defendant, nothing more is meant than that the plaintiff waives all damages in tore, and demands only the sum which has come to the defendant's hands by reason of the sale. He does not ratify any preceding breaches of contract, or waive any claims in his favor, which accrued prior to the sale. On the contrary, the whole claim of the plaintiff in the present case is founded on the breach of the contract of the defendants as earners. If they had fulfilled their contract and earned freight, they would have had a lien on the property for more than its value, and the plaintiff could have maintained no action for the proceeds of the sale. It would indeed be strange, if the form in which the plaintiff brought his action should not only defeat his own claim which he sought to enforce by it, but should also create a demand against him in favor of the defendants, which, had no existence before the plaintiff commenced his suit.

The plaintiff, however, is entitled to recover only me amount received by the defendants, after deduc.ting all reasonable charges and expenses. The sum refunded to the purchasers of the lumber should be allowed to the defendants, because it was in fact *218a reduction of the price for which the lumber was sold, by reason of a deficiency in certain articles included in the sale. It cannot be therefore now held to have been received to the plaintiff’s use. The answer of the defendants does not preclude them from claiming this deduction. If the sum is remitted, the entry will be Exceptions overruled.