§ 570. It is a familiar rule, that the action against a common carrier for a loss or injury of goods may either be in tort for the violation of his general duty, or on the contract which he expressly or impliedly enters into. The owner has his election which of these remedies he will pursue; but his choice cannot alter the extent of the carrier's liability.1 Fraud in its various phases also furnishes many occasions and opportunities for the exercise of an election between actions. One of the most common is the case of a sale upon a credit procured by the false and fraudulent representations of the vendee as to his pecuniary responsibility. Upon discovering the fraud, even before the expiration of the credit, the vendor may rescind the sale, and immediately bring an action in form of tort either to recover the goods themselves, or damages for their taking and conversion; or he may waive the tort, and sue at once on contract for the price.2 And when money has been obtained by false and fraudulent representations, or by fraudulent practices of any kind, the plaintiff has the option to sue either in tort for the deceit, or in contract for money had and received by the defendant to his use.3

where the wrong-doer has actually received money, and accepts the broad principle that the election may be had whenever a promise is implied.

1 Campbell v. Perkins, 8 N. Y. 430, 438; Brown v. Treat, 1 Hill, 225; People v. Kendall, 25 Wend. 399; Wallace v. Morss, 5 Hill, 391; Campbell v. Stakes, 2 Wend. 137.

2 Roth v. Palmer, 27 Barb. 652, and cases cited; Kayser v. Sichel, 34 Barb. 84; s. c. on app. sub nom. Wigand v. Sickel, 3 Keyes, 120, approving Roth v. Palmer.

Byxbie v. Wood, 24 N. Y. 607, 610; Union Bank v. Mott, 27 N. Y. 633, 636. In the first of these cases, objection was taken that the cause of action was for a tort, deceit. The court, after stating the facts as found on the trial, which placed the recovery upon the defendant's implied contract to refund money which he had obtained by fraudulent practices, proceed as follows: "This state of facts does not necessarily require an action to be brought for the tort. Such facts always raise in law the implied promise

which was the contract-cause of action in indebitatus assumpsit for money had and received. Having money that rightfully belongs to another creates a debt; and wherever a debt exists without an express promise to pay, the law implies a promise, and the action always sounds in contract." On the other hand, in Union Bank v. Mott, where two defendants had, through fraudulent collusion with its officers, overdrawn a large sum of money from the bank, and insisted that the action brought against them was necessarily on contract, and was therefore joint, and could not be revived against the executors of one of them who had died, the court said, per S. L. Selden J.:" The plaintiff's counsel, however, insists and, I think, correctly—that the basis of the action is tort, and not contract express or implied; that its object is not to recover for money had and received by the defendants to plaintiff's use, thus waiving the tort, but to obtain a judgment for the damages which the plaintiff has sustained through the fraudulent conduct of the defendants." The liability was therefore declared to be

§ 571. The conflict which has existed to a certain extent among the decisions in reference to the right of election, and the classes of tortious acts and omissions embraced within it, can only be put to rest by determining with certainty the occasions and circumstances in which a promise will be implied by the law. It is very clear that whenever the promise will be implied, if the acts or omissions from which it is inferred are at the same time tortious, the election to sue for the tort or for breach of the contract must necessarily exist, or else it must be denied on some mere arbitrary and insufficient ground. The whole discussion is thus reduced to the single question, When is a promise implied by the law? The comprehensive principle which furnishes a definite answer to this inquiry, applicable to all circumstances and relations, has been well stated by the courts in the following terms: "When a promise is implied, it is because the party intended it should be, or because natural justice plainly requires it in consideration of some benefit received." It was also said by a very able English judge, that "no party is bound to sue in tort, when by converting the action into an action on contract he does not prejudice the defendant; and, generally speaking, it is more favorable to the defendant that he should be sued in con

several. It will be noticed that these two cases were alike in all their essential facts, and that, in one of them, the tort was held to have been waived, and in the other not to have been waived; and this distinction was, in fact, made, not upon any difference in the allegations, but because it subserved the ends of justice, and defeated an objection of mere form. A peculiar instance of fraud was presented in the recent case of Booth v. Farmers' and Mech. Bank, 1 N. Y. S. C. 45, 49. The complaint contained two distinct causes of action. The first alleged, that, in 1860, the defendant recovered a judgment for $3,500 against a certain person named, which was properly docketed; that, in 1861, the defendant, for a valuaable consideration, assigned said judgment to the plaintiff; that, after the docketing of said judgment, the debtor owned land in the county where it was docketed more than sufficient in value to have satisfied it, and upon which it was a lien; that, in 1864, the defendant, without au

thority, discharged said judgment, whereby the lien of the judgment was lost, and the debtor was able and did convey the said land to bona fide purchasers; that the judgment debtor is now insolvent; wherefore the plaintiff has lost said judg ment, which otherwise might and would have been collected, and has sustained damage to the amount of $3,500. The second cause of action was for money had and received. In answer to a demurrer on the ground that causes of action had been improperly united, the plaintiff claimed that he had waived the tort in the first count, and had sued on an implied contract. The court, while conceding that the tort might be waived, and the right of action be placed upon the implied promise, held that there had, in fact, been no such waiver, but that the first count was in tort. See the opinion of Mullin J., given in full, supra, § 539.

1 Webster v. Drinkwater, 5 Greenl. 322; also per Beardsley J. in Osborn v. Bell, 5 Denio, 370.

1

tract." If these quotations are correct statements of the general principle it is plain that the rule maintained by some decisions, which would restrict the right of election to those cases in which the wrong-doer has actually received money equitably belonging to the plaintiff, is erroneous.2

§ 572. The foregoing examples sufficiently illustrate the scope and extent of the doctrine under consideration, and the class of liabilities to which it is applied. It remains to inquire how, under the new procedure, the plaintiff shall indicate in his pleading the fact that he has actually made his election, and has brought his action in tort or on contract, as the case may be. Under the old system, no such question could arise. The election was disclosed by the form of the action itself. If the liability was to be treated as arising from contract, assumpsit was of course the action selected; if from tort, trover or case or replevin, or sometimes trespass, were the proper instruments. Since these forms have been abolished, and all the technical phrases which distinguished one proceeding from another are abandoned, it is only by the substantial nature and contents of the allegations themselves the facts which they aver- that the election can, if at all, be now indicated. In other words, as the pleader can express his design by means of no arbitrary symbols in the complaint or petition, he must show that he has chosen to sue either in tort or on contract by the very substance of the averments which constitute the cause of action. In a recent case the New York Supreme Court proposed a certain test, and declared that when the plaintiff claims to have waived the tort, and to have sued upon an implied contract, the only possible mode of showing this election is by expressly alleging a promise to have been made by the defendant; that in no other manner can the design of making the action one ex contractu, and of distinguishing it from one ex delicto, be disclosed on the face of

1 Young v. Marshall, 8 Bing. 48, per also the following cases: Centre TurnTindal C. J.

2 It was said by Hogeboom J., while commenting upon this narrow rule in Roth v. Palmer, 27 Barb. 652: "Our courts recognize no such distinction. They allow the election in all cases where the plaintiff would have been allowed to pursue his remedy in tort." See

pike Co. v. Smith, 12 Vt. 217; Cummings v. Vorce, 3 Hill, 282; Osborn v. Bell, 5 Denio, 370; Camp v. Pulver, 5 Barb. 91; Butts v. Collins, 13 Wend. 139, 154; Lightly v. Clouston, 1 Taunt. 113; Hill v. Perrott, 3 Taunt. 274; Young v. Marshall, 8 Bing. 43.

the pleading. It has already been shown that this conclusion is directly opposed to the fundamental principles of the reformed pleading, and that it is a return to the most technical and purely fictitious dogmas and distinctions of the common-law system. It is also opposed to decisions and judicial dicta in relation to this very question which declare that such a mode of stating the cause of action is inadmissible, and that the facts alone which constitute it must be averred as they actually took place.2

§ 573. Whenever the contract relied upon is express, there can be no difficulty in showing the election upon the face of the pleading. If the plaintiff chooses to bring an action ex contractu, his complaint or petition will simply state the terms of the agreement, and the facts which constitute the breach thereof. If he chooses to bring an action ex delicto for a violation by the defendant of his general duty, his complaint or petition will set out the facts showing his own primary right and the defendant's duty, disregarding the contract, and will then allege the tortious acts or omissions by which that right and duty were violated. Although the same actual transaction between the parties would be stated in either case, the form and manner of the statement would be entirely and plainly different. An ordinary claim against a common carrier for the loss of goods furnishes a familiar example of these two modes. But when the contract relied upon is implied, and is simply the fictitious promise which the law infers from the tortious acts themselves, it may be doubted whether it is possible, in accordance with the true principles of the reformed

1 Booth v. Farmers' and Mech. Bank, 1 N. Y. S. C. 45, 49. See the complaint given supra in note to § 570, and the opinion of Mullin J., supra, § 539.

2 Byxbie v. Wood, 24 N. Y. 607, 610; Chambers v. Lewis, 2 Hilt. 591. The facts of Byxbie v. Wood were stated, and an extract from the opinion was given in the note to § 270. Immediately following the language there quoted, the learned judge proceeds as follows: "Under the code, this implied promise is treated as a fiction, and the facts out of which the prior law raised the promise are to be stated with out any designation of a form of action; and the law gives such judgment as, being asked for, is appropriate to the facts. Of course we cannot now say that a particular

phrase makes a particular form of action, so that a party, by its use, may shut himself out from the remedy which his facts would give him." As the court were here discussing the doctrine of election, and as they held that the complaint stated a cause of action on contract, and not one in tort, although no promise was alleged, this language, and the decision upon it, are entirely inconsistent with the position taken, and the test suggested by the Supreme Court in Booth v. Farmers' and Mech. Bank. In Chambers v. Lewis, the court simply said that whether a waiver has been made must now be shown by the facts averred in the complaint and by the prayer.

pleading, to frame a complaint or petition in all cases which shall show on its face that the plaintiff has elected to bring his action, either in tort or on contract. In one class of liabilities it is certainly possible to do so; namely, in those which result from the defendant's fraudulent representations and deceits. The allegation of a scienter is indispensable in the action ex delicto based upon such a liability, and distinguishes it in a marked manner from the correlative action based upon the implied promise. But when the liability results from the wrongful taking or conversion of chattels, from trespasses, negligences, or other similar kinds of wrongs, the very facts which are alleged in the action. of tort are the facts from which the promise is inferred; and, according to the true theory of pleading, these facts must also be stated in the action ex contractu, without any legal inferences or conclusions. It conclusively follows, that, in this general class of liabilities, as the facts which constitute the cause of action are the same in each, the averments of the complaint or petition must be the same in each kind of action, if the essential principles of the reformed system are complied with, so that it is impossible to indicate upon the face of the pleading alone the election which the plaintiff has made. The form of summons adopted would therefore seem to be the only certain test, in this class of cases, by which the nature of the action can be determined, and the fact of an election can be made known to the adverse party. The only other alternative is, to insert in the complaint certain legal conclusions or descriptive phrases which, in reference to the statement of the cause of action, are purely immaterial and redundant.

SECTION FOURTH.

THE FORM OF THE COMPLAINT OR PETITION.

§ 574. Having thus discussed and determined the fundamental principles and general doctrines of the reformed pleading, which apply to all causes of action, and to all defences by way of confession and avoidance or of affirmative relief, I shall now briefly consider the rules which pertain to the form of the complaint or petition, and which regulate the manner of stating and arranging its allegations. These rules are few and simple; and their