p. 274the same, and that the said goods should be shipped by the Hew England Transportation Company to Boston, addressed to George C. Goodwin & Co. ... “ That plaintiffs relied solely upon the representations of defendant that he had sold the said paper to George C. Goodwin & Co., and shipped the goods as requested by the defendant, and billed the same at the agreed price of nine dollars per case, payable in thirty days. . . . That said goods were not in fact sold to George C. Goodwin & Co., or any other person or persons at the time said defendant so represented and stated, but that subsequently the said defendant sold thirteen of the said twenty-five cases to George C. Goodwin & Co., at eight dollars per case, and received the money therefor on or about the 28th October, 1881.”
Ellis S. Yates, for appellant.
—The complaint is sufficient, under section 549, subdivision 4, Code of Civil Procedure. It is alleged in the complaint, as required by the Code, “that the defendant was guilty of a fraud in contracting and incurring the liability.” The Code substituted for the averments requisite under the common law practice, in complaints of fraudulent representations under this section, a mere bare allegation of fraud. The section refers not to the sufficiency of the pleading, but solely to the maintaining of the order of arrest. The remedy, if the complaint had not stated that the defendant was guilty of a fraud in contracting or incurring the liability, was not the dismissal of the complaint, but simply the vacating the order of arrest. The statute says, where an allegation of fraud is made, unless he proves the fraud, the plaintiff cannot recover ; but here, it is contended, not that the fraud was not proved, but that no allegation of fraud was made: if this were true, then the order of arrest must fall; that is the only remedy and the only penalty. The whole intent and purview of adding subdivision 4 to sec. 549, by the amendment of 1879, as stated in Throop’s notes to the Code, page 287, was to have the allegation of fraud made in the complaint instead of in an affidavit, and tried as an issue in the
p. 275action by the jury instead of by the court, and thus to change the method of enforcing a remedy, not to take it away (Hecht v. Levy, 20 Hun, 54 ). The cause of action for fraud was sufficiently pleaded.H. F. Averill and W. T. B. Milliken, for respondent.
—The action is in the nature of an action on the case, with the contract as only one of its facts, and the sufficiency of its pleading is to be determined by demurrer or motion (Rowe v. Patterson, 48 Super. Ct. 249; Hecht v. Levy, 20 Hun, 54 ). Subdivision 4 of section 549 of the Code requires the plaintiff to bring his action on the fraud, if he wishes an order of arrest, and procuring an order of arrest concludes him as to the nature of the action. In order to sustain his action he must allege and prove the fraud as well as the .contract. Section 549 defines causes of arrest which are identical with the cause of action, and section 550 states the causes of arrest which are extrinsic to the cause of action, and section 557, which prescribes what proof shall be necessary to procure order of arrest, provides that in cases under section 549 it need' only be shown that a cause of action exists as prescribed in that section; while for arrest under 550 proof must be furnished not only of cause of action but also facts extrinsic to cause of action as cause of arrest, and it will not be pretended that proof of the contract merely would support an order of arrest. There is no separation between the cause of action and the cause of arrest. If there had been, the case could easily have been so divided that the facts constituting the cause of action, and those constituting the cause of arrest, might be respectively passed upon by the jury, and so have saved another trial upon the contract alone.The complaint should therefore allege facts sufficient to constitute a cause of action for deceit, or, in this case, for fraud in incurring the liability sought to be enforced (Rowe v. Patterson, 48 Super. Ct. 249).This the complaint fails to do. The allegation of the complaint is “ that the defendant was guilty of a fraud in
p. 276contracting and incurring the liability,” in that, etc., limiting the general statement—so that it is equivalent not even to a positive general statement, but only to the averment that the facts alleged constitute a fraud, etc.—The complaint began by sufficiently stating a cause of action for goods sold ■ and delivered. It then proceeded, that the defendant was guilty of a fraud in contracting and incurring the liability, in that, in the bargaining for the sale, he did and said certain things. It was not alleged that ány of his acts were fraudulently done. It alleged that certain things he represented to exist did not exist, but it was not alleged that any of his representations were fraudulently made, or with knowledge that they were not true, or with intent to defraud the plaintiff. The answer admitted the sale for the price alleged in the complaint, but denied all the other allegations of the complaint.
On the trial, before testimony given, the defendant moved to dismiss the complaint; and the ground was, as I understand, that although the complaint averred that the defendant was guilty of fraud in contracting the indebtedness, no averments were made that facts existed which constituted the fraud, and that in such a case the plaintiff was not entitled to recover upon the sufficient allegations as to the' sale and delivery.
I do not think that it is necessary to argue that it was not the intention of the Code to permit judgment in such a case for fraud, upon the general allegation that there was fraud. And it was clear that the complaint did not make sufficient averments as to fraud.
The question that remains is, should the judge have refused to dismiss the complaint, or should he have retained it and given judgment for the breach of contract %
It is evident that the plaintiff did not wish a mere money judgment. The admissions of the answer sufficed to give him that; but when he brought the case on for trial, his
p. 277demand was not only for a judgment of indebtedness on the part of the defendant, but of guilty of the fraud.
The claim is not one consisting of two separable parts, contract and fraud; it is an entire claim, comprehending both. If fraud be sufficiently alleged, but not proven, the plaintiff cannot fall back upon the cause of action on contract ; he must go to another action. Where is the substantial difference between the case of untruly stating facts, the non-proving of a part of which prevents judgment for plaintiff, and the case of truly stating all that can be proved, but which, as matter of law, does not constitute fraud % If, in a case like this, a judge should hold that there were sufficient allegations of fraud, there might be judgment for plaintiff under subdivision 4 of section 549 which would entitle the plaintiff to issue execution against defendant’s person under section 1487. If this were held to be error, could the plaintiff retain the judgment on the ground that it was sustained by sufficient allegation of indebtedness that had been admitted by answer % It is right to hold the party who begins an action on the position that it is not one where he can obtain judgment only on contract, to that position, until it is ended, although, in one sense, the allegations as to the contract are sufficient; nevertheless, until, by a trial, to the expense and trouble of which he put the defendant, he was forced to abandon the claim so far as the fraud was concerned, he never asserted that the action was on contract pure and simple.
I therefore think that the judgment should be affirmed, with costs.
Truax and O’Gorman, JJ., concurred.