and the proof establishes a breach of contract express or implied, no recovery can be had, and the action must be dismissed, even though by disregarding the averments of tort, and treating them as surplusage, there might be left remaining the necessary and sufficient allegations, if they stood alone, to show a liability upon the contract. While this doctrine is firmly established, and while there is no difficulty in its application, when it is once ascertained that the cause of action is for a tort, it is not so easy, in the absence of any specific facts, and in the careless mode of pleading which is too prevalent, to determine whether the cause of action stated by the plaintiff is ex delicto or ex contractu. Under the former system, the presence or absence of certain

technical formulas removed all doubt; but as these arbitrary means of distinction have been abandoned, and as pleadings frequently, in violation of true principles, combine charges of fraud, of guilty knowledge, of taking, carrying away, and conversion, and the like, with averments of undertakings and promises and their breach, it is sometimes impossible to decide which class of allegations constitute the gravamen of the action, and which is to be regarded as surplusage. The decided cases will not give us much aid, for pleadings with substantially the same averments have received diametrically opposite constructions. There is thus a conflict among the decisions in reference to this subject irreconcilable upon principle, and only to be evaded by pronouncing one set of them to be erroneous. Although it is simply impossible to develop any general rule of interpretation from these cases, a few are selected as examples.

§ 453. *559. How Nature of Cause of Action is determined. Illustrations of Causes ex contractu. It may be considered a settled point, on principle and on authority, that the nature of the cause of action is determined by the allegations of the complaint or petition,1 so that the inquiry need never extend beyond this first pleading in the suit. I shall first cite illustrations of causes ex contractu. In an action by a vendee to recover damages arising on the sale of a horse to him, the complaint, after setting forth the sale, and that the horse was in fact "wind-broken,' stated that the defendant knew of this defect, and "fraudulently concealed the same with intent to deceive" the plaintiff, giving the circumstances in unnecessary detail; and that, "further to mislead and deceive the plaintiff, the defendant falsely represented and warranted to the plaintiff that the horse was sound, etc.; 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

1 Welsh v. Darragh, 52 N. Y. 590. 564; Graves v. Waite, 59 id. 156; GreenAlthough the immediate question was whether the cause was a referable one, yet the reasoning and conclusion are general. Some of the cases lay some stress upon the kind of summons used as indicative of the pleader's intention. The following are further examples of actions held to be on contract: Freer v. Denton, 61 N. Y. 492; Vilmar v. Schall, 61 id.

tree v. Rosenstock, 61 id. 583; Sheahan v. Shanahan, 5 Hun, 461; Harden v. Corbett, 6 id. 522; Loomis v. Mowry, 8 id. 311; Harrington v. Bruce, 84 N. Y. 103; Sparman v. Keim, 83 id. 245, 249; Harris v. Todd, 16 Hun, 248; Westcott v. Ainsworth, 9 id. 53; Stitt v. Little, 63 N. Y. 427, 432; Bishop v. Davis, 9 Hun, 342; Slutts v. Chafee, 48 Wis. 617.

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, etc., consigned to the defendants, who were commissionmerchants at, etc., 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, etc., 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, etc. This cause of action was also held by the same court to be on contract, and not for a tort. 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 be null and void, the claim to recover was put at

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 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.

See also Sheahan v. Shanahan, 5 Hun, 461; Harden v. Corbett, 6 Hun, 522; Greentree v. Rosenstock, 61 N. Y. 583, per Dwight, C.; Harlow v. Mills, 58 Hun,

391.

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.

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

§ 454. *560. Illustrations of Causes ex delicto. The following are instances of actions ex delicto. In a suit growing out of the sale of a horse bought by the vendee, the complaint was, "That on, etc., at, etc., 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," etc., to the plaintiff's damage, etc. This cause of action was held by the New York Supreme Court to be for deceit, and not on a warranty.2 The

1 Ledwich v. McKim, 53 N. Y. 307, 316. 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; Stitt v. Little, 63 N. Y. 427, 432; Westcott v. Ainsworth, 9 Hun, 53.

[A complaint averring the delivery of merchandise by plaintiff to defendants, under an agreement that defendants should sell the same, and account for the proceeds, less expenses and a certain commission, but that defendants “wrongfully and unlawfully retained and converted to their own use" an excess over the agreed commission, declares upon a contract rather than upon a tort. Hutchcroft v. Herren (1898), 33 Ore. 1, 52 Pac. 692.

See also McIntosh v. Rankin (1896), 134 Mo. 340, 35 S. W. 995, for an interesting case involving allegations indicative both of contract and tort, where the court held that the petition stated a single cause

of action on contract by which the tort damages were liquidated.]

The

2 Moore v. Noble, 53 Barb. 425. following are additional examples of actions held to be ex delicto: Barnes v. Quigley, 59 N. Y. 265; Matthews v. Cady, 61 id. 561; Peck v. Root, 5 Hun, 547; Lane v. Cameron, 38 Wis. 603; Pierce v. Carey, 37 id. 232; Neudecker v. Kohlberg, 31 N. Y. 296, 299, 301; People v. Denison, 84 id. 272; 80 id. 656; Lockwood v. Quackenbush, 83 id. 600; Stitt v. Little, 63 id. 427, 432; Bishop v. Davis, 9 Hun, 342; Westcott v. Ainsworth, 9 id..53.

[Where negligence is clearly the gravamen of the complaint, the allegations of a promise to repair defective machinery, merely to negative any presumption that plaintiff had assumed the risk of the defective machinery by continuing in the employment after the defect became known to him, does not warrant defendant in assuming at the trial that the action is for breach of contract to repair defects Mangum v. Bullion, etc. Mining Co. (1897), 15 Utah, 534, 50 Pac. 834.]

following case is even still stronger; for although it 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 cne 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

§ 455.561. Further Examples of Variance where Tort is Alleged and Contract Proved. 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; 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; 3 where the

1 Ross v. Mather, 51 N. Y. 108; Marshall v. 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 ; Walter v. Bennett, 16 N. Y. 250; Belknap v. Sealey, 14 N. Y. 143. Conaughty v. Nichols, 42 N. Y. 83. Ross v. Mather was distinguished in the case of Graves v. Waite, 59 N. Y. 156, and it was held in the latter case that, the gist of the action being upon contract, allegations of fraudulent representations inducing the plaintiff to enter into the contract and a demand of judgment for damages for the same did not change the action to tort; that the

allegations of fraud were irrelevant and non-issuable; also that the summons cannot be used to interpret the pleadings. Graves v. Waite, again, was distinguished in Barnes v. Quigley, 59 N. Y. 265, and Matthews v. Cady, 61 N. Y. 651. See also Peck v. Root, 5 Hun, 547 (fraud); Pierce v. Carey, 37 Wis. 232 (fraud).

2 Rothe v. Rothe, 31 Wis. 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.

8 Anderson v. Case, 28 Wis. 505, 508; Kewaunee Cy. Sup. v. Decker, 30 Wis.