Conversely, he cannot sue on contract and recover for a tort disclosed by the evidence. 60 Thus, a passenger suing for damages for his ejection from a train cannot plead breach of contract and recover on the theory that by using unnecessary violence the servants of the railroad company were guilty of a trespass. 61 And under a petition for goods sold and delivered the plaintiff cannot recover on a state of facts which constitute a trespass de bonis asportatis. 62 So also, one cannot sue in assumpsit and recover upon evidence showing the existence of a right of action for deceit; 63 or on contract and recover damages resulting from false representations on the strength of which the contract was entered Peck v. Root, 5 Hun, 547; People v. Denison, 19 Hun, 137 (affirmed in 80 N. Y. 656); Allen v. Allen, 52 Hun, 398, 5 N. Y. Supp. 518.

58 Knowles v. Knowles, 25 R. I. 464, 56 Atl. 775.

59 Western Maryland R. Co. v. Schaun, 97 Md. 563, 55 Atl. 701, 14 Am. Neg. Rep.

555.

60 Foster v. Dupre, 5 Mart. (La.) 6, 12 Am. Dec. 466; Beard v. Yates, 2 Hun, 466; Sanford v. American Dist. Teleg. Co. 13 Misc. 88, 34 N. Y. Supp. 144; Leck v. Rudd, 53 N. Y. Supp. 208; Lovell Mfg. Co. v. Dougherty, 5 Pa. Co. Ct. 399.

In Modern Woodmen v. Union Nat. Bank, 47 C. C. A. 667, 108 Fed. 753, it was held that the trial court was justified in directing a verdict for defendant where plaintiff's action was brought on contract, but it appeared that his right of action, if any, was in tort.

Where a complaint is drawn on the theory that the action is ex contractu, it cannot be treated as ex delicto for the purpose of supporting_a recovery. Westerfield v. New York L. Ins. Co. 129 Cal. 68, 58 Pac. 92, 61 Pac. 667.

61 Chicago & E. R. Co. v. Field, 7 Ind. App. 172, 52 Am. St. Rep. 444, 34 N. E. 406; Chicago & E. R. Co. v. Olsen, 7 Ind. App. 698, 34 N. E. 531.

62 Link v. Vaughn, 17 Mo. 585. 63 Oakes v. Shrewsbury, 2 Rich. L. 410. 64 Studwell v. Shapter, 54 N. Y. 249. 65 Southwick v. First Nat. Bank, 84 N. Y. 420. In this case the court said: "Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary. Here the defendant was brought into court to answer a complaint that he had violated his promise to apply

Again, he cannot set up one contract and claim to recover on another; 66 or declare upon a verbal contract and recover upon a written one; 67 nor, where he declares upon an express contract, can he recover upon an implied contract or upon quantum meruit. 68

But just as, as has been above pointed out, a mistake of the pleader as to the legal conclusion to be drawn from the facts averred will not render demurrable a complaint which states facts sufficient to constitute a cause of action, so such a mistake will not affect the right to recover judgment upon due proof of the facts pleaded. 69

Where the ambiguity of the complaint is not objected to until after the evidence is in, it should be construed in favor of whichthe proceeds of the draft, and he took issue upon the alleged promise, and when he came to trial he was held liable, not for any breach of promise, but for the money paid by the Boston firm on the ground of a conversion of the draft, or the mistake of facts which induced the payment of the money. The cause of action alleged was one held by the plaintiff, as assignee of F. P. Merriam, for the breach of the promise to pay the old draft owned by him. The cause of action for which the recovery was had was one which the plaintiff held, as assignee of J. N. Merriam & Company, for the recovery of the money paid by them upon the new draft. It is no answer to this objection that the defendant was probably not misled in its defense. A defendant may learn outside of the complaint what he is sued for and thus may be ready to meet plaintiff's claim upon the trial. He may even know precisely what he is sued for when the summons alone is served upon him. Yet it is his right to have a complaint, to learn from that what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer; and when a plaintiff fails to establish the cause of action alleged, the defendant is not to be deprived of his objection to a recovery by any assumption or upon any speculation that he has not been injured."

66 Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180; Richardson v. League, 21 Ind. App. 429, 52 N. E. 618.

67 Johnston Harvester Co. v. Bartley, 81 Ind. 406; Toledo, St. L. & K. C. R. Co. v. Levy, 127 Ind. 168, 26 N. E. 773.

68 Sanders v. Hartge, 17 Ind. App. 243, 46 N. E. 604; Vedder v. Leamon, 70 App. Div. 252, 75 N. Y. Supp. 413.

69 In Wright v. Hooker, 10 N. Y. 51, it was held that under the code system of pleading, the object of which is to enable the court to give judgment according to the facts stated and proved without reference to the form used or to the legal conclusions

69a

IV. Materiality of character of action. Although, as above pointed out, it is not necessary, in code states, at least, for a plaintiff to characterize his action as one sounding in contract or in tort in order that it may withstand demurrer, and though where a complaint states a cause of action in one aspect or the other it will be considered as having been framed in that adopted by the pleader, judgment might be rendered against a defendant as one of the drawers of the bill in suit, although it appeared that the person who drew the complaint contemplated that such defendant would be held liable in some other capacity. (Compare, as involving a somewhat similar situation, Stix v. Matthews, 75 Mo. 96, in note 53, supra.)

In Metropolis Mfg. Co. v. Lynch, 68 Conn. 459, 36 Atl. 832, it is held that under a statutory provision that a complaint must contain "a statement of the facts constituting the cause of action and a demand for the relief to which he (the plaintiff) supposes himself to be entitled," judgment must follow proof of the facts alleged. The court said: "The views and claims of the plaintiff, however persistently pressed, cannot alter the cause of action proved, nor control the judgment. When the complaint sets forth facts sufficient to support a cause of action, and those facts are established by the evidence to satisfaction of the trier, the court must pronounce the sentence of the law upon the facts as found. Treating the action as one of conversion in his demurrer to the plea in abatement filed by the defendant is simply additional evidence that the plaintiff insisted on his theery, classifying the action as founded on tort. However strongly a plaintiff, in such a case, may have planted himself on this theory, he is still entitled in argument to claim a judgment on the theory of contract; and if the law is so that the plaintiff is entitled, upon the facts alleged and proved, to a judgment, it is the duty of the court to render that judgment, although the cause of action proved should be classed as one founded on contract, and the plaintiff has never ceased to claim that it is founded on tort. Of course, when the production of evidence or any material rights in the trial of a cause have been affected by pressing one theory to the abandonment of the other, different questions may arise."

69a West v. Eley, 39 Or. 461, 65 Pac. 798 (where it was doubtful whether the complaint stated a cause of action for the reasonable value of services, or on a contract to pay a given sum for stated work).

Where a petition alleges two states of fact upon either of which defendant would be liable, the plaintiff is entitled to recover if he establishes either of them, even though he fails to prove the allegations which, as

ing the presence of allegations appropriate to the other character of action, the distinction between actions ex contractu and actions ex delicto is too deeply rooted to be wholly eradicated, 70 and it frequently becomes necessary to ascertain the true character of the suit. To enumerate some of the principal instances, the question may arise whether the action was properly brought in a court which has jurisdiction if it is in contract, but not if it is in to such one, were redundant; although he might have been required, upon proper motion, to strike out one of the averments, or to plead the two states of facts in sepa rate counts. Way v. Chicago, R. I. & P.^R. Co. 73 Iowa, 463, 35 N. W. 525.

For cases in which it was doubtful whether a cause of action on contract or in tort was intended to be stated, see note 143, infra.

70 In Whittenton Mfg. Co. v. Memphis & O. River Packet Co. 21 Fed. 896, it is said that "like the distinctions between law and equity, it may be doubted if it is possible to wholly obliterate those between contracts and torts, they do so inhere in the very bone and flesh of our law.”

In Cincinnati, W. & M. R. Co. v. Harris, 61 Ind. 290, it is said that the Code has not abolished the distinction between actions sounding in tort and those sounding in contract.

In Austin v. Rawdon, 44 N. Y. 63, it is said that although the form of all actions at law and suits in equity, and all the forms of pleading existing before the Code, were thereby abolished, and it is now sufficient to state in a plain and concise manner the facts constituting the cause of action, yet the substantive distinctions between actions on contract and those founded in tort still exist.

While pleadings under the code system are to be liberally construed in favor of the pleader, yet the principle is not to be indulged so far as to destroy all distinction between causes of action, as by a recognition of such distinction in the statement of the cause of action in pleadings the orderly conduct of legal proceedings in causes mainly depends. Allen v. Allen, 52 Hun, 398, 5 N. Y. Supp. 518.

In Booth v. Farmers' & M. Nat. Bank, 65 Barb. 457, it is said that the codifiers, while professing to abolish the distinction between forms of actions, found it impossible or impracticable in many cases to effect their object.

The Code has neither obliterated nor obscured the broad and fundamental distinction between tort and assumpsit. Andrews v. Bond, 16 Barb. 633.

While the Code has abolished forms of

pleading, and only requires that the facts shall be stated in a plain and concise manner, without unnecessary repetition, still the distinctions between actions as they

necessary to the statement of the cause of action; 79 or whether the cause is one to which some practice regulation, such as the filing of a copy of a contract sued on with the complaint, 80 or the obtaining of an allowance of the amount in value of the property to be attached, previous to suing out an attachment, 81-is applicable; or whether a proposed amendment to the complaint introduces a different cause of action, 82 So, also, the nature of the action may become material in ascertaining the point of time from which the statute of limitations begins to run; 83 or the time within which

In Pennsylvania, even since the procedure act of 1887, the distinction between the statement of an action on contract and an action in tort is maintained. See Krause v. Pennsylvania R. Co. 4 Pa. Co. Ct. 60. In Howland v. Needham, 10 Wis. 496, it is said that the legislature may change the form of an action, but its essence is beyond their reach. "They can declare that there shall be but one form of action, but they cannot thereby convert torts into contracts, or contracts into torts. The principles upon which they are distinguished are beyond legislative influence."

The distinction between actions in tort and on contract is as essential under Code Practice as it ever was. Pierce v. Carey, 37 Wis. 232.

71 See Southern R. Co. v. Born Steel Range Co. 122 Ga. 658, 50 S. E. 488; Thomas v. Schram, 52 Mich. 213, 17 N. W. 815; State use of Kearney v. Dehlinger, 46 Mo. 106; Farrington v. Bullard, 40 Barb. 512; Busch v. Interborough Rapid Transit Co. 110 App. Div. 705, 96 N. Y. Supp. 747 (affirmed in 187 N. Y. 388, 80 N. E. 197, 10 Ann. Cas. 460); White v. Eley, 145 N. C. 36, 58 S. E. 437.

72 See Washbon v. Jinscott State Bank, 87 Kan. 688, 125 Pac. 17; Byxbie v. Wood, 24 N. Y. 607; Brady v. Bissell, 1 Abb. Pr. 76. 73 See Stanley v. Bircher, 78 Mo. 245; Lorick v. Palmetto Nat. Bank, 76 S. C. 500, 57 S. E. 527; Lane v. Frawley, 102 Wis. 373, 78 N. W. 593.

74 Central American S. S. Co. v. Mobile & O. R. Co. 144 Mo. App. 43, 128 S. W. 822. 75 See Sheldon v. The Uncle Sam, 18 Cal. 527, 79 Am. Dec. 193.

76 See Orange Bank v. Brown, 3 Wend. 158; Slutts v. Chafee, 48 Wis. 617, 4 N. W. 763.

77 See Elwood v. Gardner, 45 N. Y. 349; McGovern v. Payn, 32 Barb. 83; Thompson v. Strauss, 29 Hun, 256.

78 See Cook v. Bloodgood, 7 Ala. 683; Belisle v. Clark, 49 Ala. 98; Whilden v. Merchants' & P. Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1; Mobile L. Ins. Co. v. Randall, 74 Ala. 170; Prout v. Webb, 87 Ala. 593, 6 So. 190; Louisville & N. R. Co. v. Brinkerhoff, 119 Ala. 528, 24 So. 885; Carpenter v.

1912D, 863, 2 N. C. C. A. 371; Fordyce v. Nix, 58 Ark. 136, 23 S. W. 967; Stevens v. Hurlbut Bank, 31 Conn. 147; Stark v. Wellman, 96 Cal. 400, 31 Pac. 259; Ayers v. Richards, 12 Ill. 146; Powell v. Kinney, 6 Blackf. 359; The Milwaukee v. Hale, 1 Dougl. (Mich.) 306; Hoey v. Harty, 48 Mich. 191, 12 N. W. 44; Manistee Nav. Co. v. Louis Sands Salt & Lumber Co. 174 Mich. 1, 140 N. W. 565; McDermott v. Morris Canal & Bkg. Co. 38 N. J. L. 53; Howe v. Cook, 21 Wend. 29; Roth v. Palmer, 27 Barb. 652; Booth v. Farmers' & M. Nat. Bank, 65 Barb. 457; Central Gas & E. Fixture Co. v. Sheridan, 1 Misc. 386, 22 N. Y. Supp. 76; Zrskowski v. Mach, 15 Misc. 234, 36 N. Y. Supp. 421; Atwill v. Le Roy, 4 Abb. Pr. 438, 15 How. Pr. 227; Pettit v. Sanger, 2 Pearson (Pa.) 84; Booker v. Donohoe, 95 Va. 359, 28 S. E. 584; Whereatt v. Ellis, 58 Wis. 625, 17 N. W. 301; Fifield v. Sweeney, 62 Wis. 204, 22 N. W. 416; Clarke v. Harding, 17 N. B. 495.

79 See Pittsburgh, C. C. & St. L. R. Co. v. Coll, 37 Ind. App. 232, 76 N. E. 816; Gorham v. Gross, 117 Mass. 442; Church v. Anti-Kalsomine Co. 118 Mich. 219, 76 N. W. 383; Yeater v. Hines, 24 Mo. App. 619; Spero v. Levy, 43 Misc. 24, 86 N. Y. Supp. 869; Pennsylvania R. Co. v. Smith, 106 Va. 645, 56 S. E. 567; Kewaunee County v. Decker, 30 Wis. 624; Potter v. Van Norman, 73 Wis. 339, 41 N. W. 524.

80 See Rauh v. Stevens, 21 Ind. App. 650, 52 N. E. 997.

81 See McGinn v. Butler, 31 Iowa, 160.

82 See Mobile L. Ins. Co. v. Randall, 74 Ala. 170; Sharpe v. National Bank, 87 Ala. 644, 7 So. 106; Baldwin v. Kansas City, M. & B. R. Co. 111 Ala. 515, 20 So. 349; Link v. Jarvis, 5 Cal. Unrep. 750, 33 Pac. 206; Johnson v. Cummings, 12 Colo. App. 17, 55 Pac. 269; Turner v. Western & A. R. Co. 69 Ga. 827; Southern R. Co. v. Forrest, 132 Ga. 853, 65 S. E. 93; Jenkins v. Seaboard Air-Line R. Co. 3 Ga. App. 381, 59 S. E. 1120; Lane v. Cameron, 38 Wis. 603, 1 Am. Neg. Cas. 743: Johnston v. Charles Abresch Co. 123 Wis. 130, 68 L.R.A. 934, 107 Am. St. Rep. 995, 101 N. W. 395; Atlantic & P. R. Co. v. Laird, 164 U. S. 393, 41 L. ed. 485, 17 Sup. Ct. Rep. 120.

83 See Russell & Co. v. Polk County Ab