that the horse was sound, &c.; that by reason of the premises the plaintiff was deceived, and was induced to purchase and pay for the horse;" concluding with an allegation of damages and a prayer for judgment. The Superior Court of New York City held that this complaint stated a cause of action on contract for the breach of a warranty, and that all the averments of fraud must be treated as surplusage.1 A complaint contained the following averments: that the defendants, having in their possession certain securities, the property of the plaintiff, entered into an agreement with him, whereby they promised to deliver up said securities to him; that he had demanded the same, but the defendants wrongfully refused to deliver them, and wrongfully disposed of and converted them to their own use. The New York Court of Appeals pronounced this cause of action to be on contract, and not for a tort.2 In another quite similar case the complaint stated that the plaintiffs, at, &c., consigned to the defendants, who were commission-merchants at, &c., certain specified articles, to be sold by them, and the net proceeds thereof remitted; that the defendants received the goods, and sold them for a sum named; and after deducting all expenses, there was due to the plaintiffs the sum of, &c., which they demanded of the defendants, who omitted and refused to pay the same, and have converted the same to their own use, to the damage of the plaintiffs of, &c. This cause of action was also held by the same court to be on contract, and not for a tort.3 In a more recent action brought for the price of certain bonds that had been sold to the plaintiff, and which had turned out to

1 Quintard v. Newton, 5 Robt. 72. The plaintiff, at the trial, proved the warranty, but gave no evidence of the scienter, and the complaint was dismissed. The General Term held that he should have recovered, putting their decision upon the allegation of a warranty. As this averment stood alone, it would seem that it ought to have been rejected as the surplusage. This decision, in the light of more recent ones, must be regarded as erroneous it is not, however, opposed to the leading doctrine stated in the text.

2 Austin v. Rawdon, 44 N. Y. 63, 68, 69. The statement of a wrongful disposition and conversion was said to be merely the averment of a breach. There can be no doubt as to the correctness of

this decision. The central fact of the complaint was made to be the promise, and the breach was inartificially charged.

3 Conaughty v. Nichols, 42 N. Y. 83. The complaint was dismissed at the trial, on the ground that the cause of action proved was on contract, while the one pleaded was for tort. This ruling was reversed, the Appellate Court saying that the single concluding averment of a conversion should be treated as surplusage. The opinion contains an elaborate discussion of authorities. This and the preceding case are substantially alike. See also Byxbie v. Wood, 24 N. Y. 607, 610, 611, in which certain averments of fraudulent practices were held to be surplusage, and the cause of action to be on contract.

In a

be null and void, the claim to recover was put at the trial on the ground of implied contract, a warranty of title. The defendant moved to dismiss the complaint, because it was based upon the theory of fraud, that its allegations were of deceit and false representations. The reporter does not think best to disclose the nature of the complaint, although the entire decision turned upon it. The court held that the cause of action was on contract.1 § 560. The following are instances of actions ex delicto. suit growing out of the sale of a horse brought by the vendee, the complaint was, "That on, &c., at, &c., the plaintiff purchased a certain horse of the defendant for the agreed price of $120, and paid defendant said sum; that the defendant, to induce the plaintiff to buy the said horse, falsely and fraudulently represented the said horse worth and of the value of $120, and guaranteed the said horse to be sound in all respects, and wholly free from disease; that said horse was not sound or free from disease, but was unsound and diseased in this (describing), which said disease was well known to defendant at the time of the sale," &c., to the plaintiff's damage, &c. This cause of action was held by the New York Supreme Court to be for deceit, and not on a warranty.2 The following case is even still stronger; for although it

1 Ledwich v. McKim, 53 N. Y. 307, 316. From an examination of the record, I am able to state the exact language of the complaint. The only allegation involving the question at issue is, that on, &c., the defendants sold to the plaintiff certain bonds "purporting to be bonds of the U. S. & T. R. R. Co., and represented by said defendants to be such bonds, and to have been issued by and binding upon said R. R. Co., and that, in consideration thereof, and relying upon the representations so made," the plaintiff paid the price; that the bonds were valueless; a demand on the defendants for a repayment of the price, &c. There was no averment of knowledge on the part of the defendants, nor of an intent to deceive. This certainly falls far short of the allegations necessary to make out a case of fraud. Folger J. said (p. 316), after reciting the defendants' claim, and the averments of the complaint as given above: "But the summons is not for relief: it is for money. The complaint

avers the facts which were proven, and which make out a cause of action in contract. The presence of the averments as to the representations, even were they averred to have been false and fraudulent, do not make the action one ex delicto." The correctness of this decision is plain; a cause of action on contract was certainly set forth, and the statements as to representations by the defendants were not sufficient to show a liability on account of fraud. As to the allegations which must be made and proved in order to establish a cause of action for deceit, see Meyer v. Amidon, 45 N. Y. 169; Oberlander v. Spiess, 45 N. Y. 175; Marsh v. Falker, 40 N. Y. 562; Marshall v. Gray, 57 Barb. 414; Weed v. Case, 55 Barb. 534; Gutchess v. Whiting, 46 Barb. 139.

2 Moore v. Noble, 53 Barb. 425. No scienter was proved, and the plaintiff recovered for a breach of warranty. The court, in reversing this ruling, said: That the complaint is for deceit in the

was conceded that a contract was fully set forth in the pleading, yet the averments of fraud were held to fix the true character of the action. The claim was for damages arising from the sale of a horse, and sustained by the purchaser. The complaint alleged the sale; that at the time thereof the horse was lame in one leg; that defendant warranted and falsely and fraudulently represented that this lameness resulted from an injury to his foot, and nowhere else; that when his foot grew out he would be well, and that he had only been lame two weeks; that plaintiff, relying upon this warranty and representation, and believing them to be true, bought the horse, and paid the price [the representations were then negatived]; that the horse was lame in his gambrel joint, and had been so for a long time, all which the defendant, at the time of the sale and the making such warranty and representations, well knew; that by reason of the premises the defendant falsely and fraudulently deceived him, to his damage of $500. The cause of action thus stated was held to be for deceit, and not for a breach of warranty.1

sale, wilfully and knowingly perpetrated by defendant, is manifest; to give any other construction would be to violate all the rules of language and of plead ing." Also that it was necessary for the plaintiff to prove the substantial averments, the knowledge and intent, and that he could not recover on a contract of warranty. This case cannot be distinguished in its facts from Quintard v. Newton, supra, and implicitly overrules that decision.

1 Ross v. Mather, 51 N. Y. 108. At the trial the plaintiff proved a warranty, but gave no evidence tending to show any false or fraudulent representation or intent to deceive on the part of the defendant, and was permitted to recover. Hunt J., for the Court of Appeals, said: The complaint contains all the elements of a complaint for a fraud. It must be held to be such, unless the distinction between the two forms of action is at an end. While it contains all that is necessary to authorize a recovery upon a contract, it contains much more [reciting the allegations as above]. No allegations could have been inserted which would have more clearly constituted a case of fraud. That there was a warranty as

well as representations, or that both are alleged to have existed, does not alter the case. . . I do not find any authorities in the courts of this State which sustain the position that this complaint may be considered as an action for a breach of warranty." He then cites Moore v. Noble, supra; Marshall ». Gray, 57 Barb. 414; McGovern v. Payn, 32 Barb. 83, all of which hold the causes of action therein stated to be fraud, and that the plaintiff must prove a scienter; also Walter v. Bennett, 16 N. Y. 250; Belknap v. Sealey, 14 N. Y. 143, which hold that, when the complaint alleges a cause of action for a tort, the plaintiff cannot recover on contract, and proceeds as follows: "In the present case, the plaintiff made a statement of facts which did not constitute his cause of action. The code never intended that a party who had failed in the performance of a contract merely should be sued for a fraud; or that a party who had committed a fraud should be sued for a breach of contract, unless the fraud was intended to be waived. The two causes of action are entirely distinct; and there can be no recovery as for a breach of contract when a fraud is the basis of the complaint. Conaughty v. Nichols, 42

§ 561. The doctrine that a cause of action ex contractu cannot be proved at the trial when the complaint or petition states one ex delicto has been applied to the following classes of cases: where the complaint alleged improper, careless, and negligent conduct, and concealment of material facts by the defendant; 1 where the complaint was for the conversion of goods or moneys, and the plaintiff, at the trial, relied upon the breach of an implied contract for money had and received; 2 where the suit was brought to recover the possession of personal property, and the cause of action as proved was for money had and received, or money due upon a general indebtedness; and finally where a case of deceit and fraudulent representations was stated, and the proof established the breach of a contract. In addition to the general doctrine, that a party should be fully and truly apprised of the nature of the claim set up against him, there is a special reason why the plaintiff cannot recover for a breach of contract

N. Y. 83, is the only authority cited to the contrary, and it does not sustain that position."

Rothe v. Rothe, 31 Wisc. 570, 572. The court further held that the rule must be applied, even though the allegations of tort failed to state a sufficient ground for a recovery, if they were enough to determine the nature of the cause of action.

2 Anderson v. Case, 28 Wisc. 505, 508; Supervisors v. Decker, 30 Wisc. 624; Johannesson v. Borschenius, 35 Wisc. 131, 135; Walter v. Bennett, 16 N. Y. 250. In Anderson v. Case, Lyon J. said (p. 508): “ The plaintiffs contend, however, that, although they have failed to establish their right to recover in this form of action for the conversion of the property, they have proved their right to recover the proceeds of the sale thereof in an action for money had and received, and that therefore the verdict and judgment should not be disturbed. . . . The distinction between an action for the wrongful conversion of property and an action for money had and received is not merely technical or formal, but is a substantial one. The former is an action ex delicto, the latter ex contractu. In the one, execution goes against the body, in the other against the property only, of the defendThe defendants in this action are

ant.

liable to be imprisoned by virtue of an execution issued upon the judgment against them; while they would not be so liable were this an action for money had and received." The opinion of Dixon C. J. in Supervisors v. Decker is the most elaborate, and one of the most able and exhaustive discussions on the nature of pleading in general under the reformed system to be found in the reports.

3 Sager v. Blain, 44 N. Y. 445, 448, 450. 4 De Graw v. Elmore, 50 N. Y. 1; Ross v. Mather, 51 N. Y. 108; Moore v. Noble, 53 Barb. 425; Watts v. McAllister, 33 Ind. 264; Dean v. Yates, 22 Ohio St. 388, 397. When a complaint sets out a cause of action upon contract, and not for tort, as, for example, to recover money had and received by the defendant to the plaintiff's use, any averments as to the nature of the defendant's employment showing that it was of a fiduciary character, and the like, are wholly immaterial; they form no part of the cause of action, and are not issuable. Where no order of arrest has been granted in such an action, the judgment cannot be enforced by a body execution; and a clause in the judgment permitting a body execution will be struck out on appeal. Prouty v. Swift, 51 N. Y. 594, 601.

when the cause of action stated in the record is for deceit or any other tort. In many actions of tort the defendant may be taken on a body execution, issued upon the judgment; while a simple breach of contract never exposes him to that liability. If, therefore, a cause of action on contract could be proved and judgment thereon recovered when one for tort was alleged, the record might show a case for arrest on final process, although the issues actually tried involved no such consequence.1

§ 562. I shall conclude this subdivision by quoting some passages from the most able and practically instructive opinion of Mr. Chief Justice Dixon in the case of Supervisors v. Decker.2 The whole theory of pleading is discussed in this elaborate judgment; but it is peculiarly appropriate in connection with the subjects of insufficiency, redundancy, and immateriality of allegations. "It would certainly," he said, "be a most anomalous and hitherto unknown condition of the law of pleading, were it established that the plaintiff could file a complaint, the particular nature and object of which no one could tell, but which might and should be held good as a statement of two or three or more different and inconsistent causes of action, as one in tort, one upon a money demand upon contract, and one in equity, all combined or fused and moulded into one count, so that the defendant must await the events of the trial, and until the plaintiff's proofs are all in, before being informed with any certainty or definiteness what he was called upon to meet. The proposition that a complaint or any single count of it may be so framed with a double, treble, or any number of aspects, looking to so many distinct and incongruous causes of action, in order to hit the exigencies of the plaintiff's case or any possible demands of his proofs at the trial, we must say strikes us as something exceedingly novel in the rules of pleading. We do not think it is the law, and, unless the legislature compels us by some new statutory regulation, shall hereafter be very slow to change this conclusion. The defendant supposes the complaint herein to be

1 This special reason for the rule is alluded to in several of the foregoing

cases.

2 Supervisors v. Decker, 30 Wisc. 624, 626. The action was brought to recover money of the county alleged to have been converted by the defendant to his own

use, he being Clerk of the Board of Supervisors. The complaint contained averments of fraud, of negligence, of conversion, and of contract. A demurrer to it having been overruled, the defendant appealed.