I concur with my brother Field, in affirming the judgment of the Court below.
1. The judgment was by default, and the summons was fatally defective in this, that it did not apprise the defendant that, upon his failure to appear and answer, the plaintiff would take judgment against him for fraudulently converting the property of the plaintiff. The notice in the summons was that “ if you fail to appear and answer the said complaint, as above required, the said plaintiff will take judgment against you for the said sum of eleven thousand one hundred and fifty-six dollars and sixty-two cents, interest and costs, etc.” Under such a notice, the plaintiff could only take an ordinary judgment upon default for the money demanded. A defective summons will not sustain a judgment by default. 2 Cal. R., 241.
2. The complaint does not state facts sufficient to authorize the judgment prayed for. It is not only defective in the particular stated in the opinion of my brother Field, but it would not, in my opinion, have been sufficient had the phrase “ or attorney in fact ” been omitted, or had the conjunction and been used instead of or.
The proceeding against a party for fraudulently embezzling, misapplying, or converting property, in the course of his employment, as agent or in any other fiduciary capacity, is, in its essential character, a quasi criminal proceeding, and the defendant should be distinctly apprised of the facts intended to be proved against him. The complaint should state the facts that constitute the party the agent of the plaintiff, if he was but an agent for one especial purpose; and if a general agent, then an affirmative allegation that he was such general agent, either for all purposes of a certain character, or for business purposes of every kind. Agency is usually created by previous contract between the parties, and the contract should be stated. It may be that the whole question of fraud will turn upon the fact whether the defendant did act in a fiduciary capacity. The facts constituting that fiduciary capacity should be stated with as much certainty, at least, as would be necessary in a complaint where the principal sues his agent for unfaithfully or negligently performing his trust.
In this complaint, it was alleged that on a specified day the defendant was in possession of certain moneys collected and received by him as agent, or attorney in fact. The allegation simply is, that defendant collected the money, as agent, not that he then had it in his possession, as such. There is no allegation that he fraudulently converted the same to his own use “ in the *626course of his employment as such.” It is true that he is charged with intending to cheat and defraud. But this is not sufficient. The defendant may have collected, the money as agent, and then his agency may have ceased, and he may have wickedly intended to cheat and defraud the plaintiff, and still not have been guilty of the offence specified by the statute. It is not the conversion of money by every agent that will come within the intent of the statute. But the conversion must be made while he is agent, in the course of his employment as such, and contrary to the contract between him and his principal. If money be collected by a banker for a customer, in the usual course of business, and placed to the credit of the customer, and then used by the banker as he usually does the money of his other depositors, this would not constitute fraud;—if the deposit was special, it would.