Opinion
November Term, 1900.
Charles A. Stone, for the appellant.
Edward R. Hall, for the respondent.
The learned referee seems to have interpreted the complaint in this action as stating only a cause of action based upon fraud; if he is right in that construction then the judgment is right, for clearly no fraud was proven.
The action was commenced in a Justice's Court and the rules applicable to pleadings in that court are invoked. If it can by liberal construction be seen that the pleader intended to state and prove an action upon contract and damages for a breach of contract the nature of the action is not tortious. The character which the judgment must bear, whether enforcible by execution against the body or only against the property of the debtor, is the proper test of the nature of the action, and this test must necessarily be applied to the complaint without reference to the proof, for the proof is no part of the judgment roll.
The complaint alleges a contract made by defendant to furnish the material, "erect and finish in workmanlike manner" for plaintiff a house; that he did erect a house according to contract, "except as hereinafter mentioned," and that plaintiff paid defendant the full contract price. The exception mentioned is stated in this wise, and this is the cause of action: "But that defendant, in erecting said building and furnishing material therefor, negligently, deceitfully, fraudulently and wrongfully, and with intent to neglect, deceive, defraud and wrong this plaintiff, used inferior material and performed inferior workmanship in and about the lath and plastering * * * and * * * used the said inferior material and performed the inferior workmanship in such a manner that plaintiff was unable to detect and discover the same at the time of said payments, and, by reason of the said negligent, deceitful and wrongful acts of this defendant, plaintiff was induced to pay to defendant the said price of the said building in full * * * and, by reason of plaintiff's being induced to pay in full as aforesaid," this plaintiff was damaged, etc.
There are no other allegations in the complaint which can be properly used to qualify this principal allegation. From this it would appear that, through deception practiced by defendant, unearned money was obtained from the plaintiff. She seeks to have that money returned. I am of the opinion that if plaintiff should prevail she would be entitled to a judgment enforcible by execution against the defendant's body. It would be a judgment for obtaining money wrongfully and by fraudulent practices. It cannot be confined to the simple proportions of an action for breach of contract, the elements of a complaint in which are wholly embraced in alleging the contract, failure to perform, payment in advance or payment in ignorance of the failure.
I have reluctantly reached the conclusion that the judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.